July 31, 2012
DYMPHNA C. AGOS, PLAINTIFF-APPELLANT,
MICHAEL CAMUSO, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 24, 2012
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 rented quarters in Philadelphia or the financial impact of that decision on the costs that defendant was asked to bear.
On September 10, 2010, defendant filed a motion seeking relief from his obligation to contribute to the expenses of his son's college education or, in the alternative, a Newburgh hearing. One month later, plaintiff filed a cross-motion seeking denial of relief to defendant and enforcement of her right to the sixty-percent payment. Finding factual issues to exist, the court ordered a testimonial hearing, which took place on January 10, February 22, and February 24, 2011.
At the hearing, testimony was offered by the son, plaintiff and defendant. Thereafter, on April 8, 2011, the judge gave a comprehensive oral decision on the record, in which he detailed the parties' and the son's testimony and, after consideration of the Newburgh factors and relevant additional case law, relieved defendant of his obligation to contribute to the son's college tuition and expenses as defined in the marital settlement agreement for the Fall 2010 and Spring 2011 school year. The order provided, in addition:
2. Prospectively, [the son] shall have meaningful communication with the Defendant and keep Defendant informed as to all college related matters such as course of study, school events, college expenses, applications for scholarships, student loans, grants, work study and all work engaged by [the son] during the school year or during any school breaks including summertime, grades and any decisions to change school or course of study. For the communication to be meaningful it must be in advance of the event so as to permit Defendant the opportunity for participation in any such educational decision and plan for his own financial future.
3. Failure to have the meaningful communication set forth in Paragraph Two (2) shall relieve the Defendant of all or a part of his obligation to contribute to [the son's] "college tuition and expenses" for any given semester or entire year, as the court may deem appropriate on any future application.
The order stated that it addressed only "college tuition and expenses" and not child support, which defendant continued to pay. Both parties' requests for attorneys' fees were denied.
In reaching his decision, the judge found that plaintiff, defendant and the son shared equal responsibility for the deterioration in the relationship between defendant and his son. In that regard, the judge found that, after the son became dissatisfied with his father's treatment, neither the son or his mother "did what should have been done to correct the problem or to allow Mr. Camuso, who was anxious to do so, to correct the problem[.]"
There was no meaningful communication between [the son] or Ms. [Agos] with Mr. Camuso as to what was the problem. [The son] did not communicate at all, and [as] to whatever he told his mother, even if it was as little as I'm being left out, she never communicated that to Mr. Camuso, letting this matter get worse instead of affording an opportunity to get better.
According to the judge, "[i]f [defendant] is the architect, [the son] is the engineer and Ms. Agos is the construction manager with regard to the status of this relationship and its shambles."
In determining whether it would be fair and equitable to enforce the payment provisions of the parties' marital settlement agreement, the judge addressed the factors set forth in Newburgh.*fn1 In that regard, the judge recognized that defendant did not seek relief from the obligations set forth in the marital settlement agreement because of an alleged inability to pay, that the parties intended that their son attend college, and that the son had demonstrated an aptitude for such a course of study. Focusing on factor 11, "the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance[,]" the judge first noted the son's estrangement from his father and his assignment of responsibility for that circumstance. The judge observed:
There is no mutual affection. It all is one-sided. It's been a one-sided relationship that Mr. Camuso has been offering. It has not been facilitated by Ms. Agos. So, there is no relationship and accordingly there was no responsiveness to any advice or guidance with regard to the issue of college selection[.]
Further, and more importantly, the judge found that there was no meaningful communication between the parties with respect to college - a matter that the judge found to be of greater importance than the status of the relationship between father and son. In support of this conclusion, the judge quoted at length from e-mails exchanged between plaintiff and defendant, noting the withholding by plaintiff of information regarding the son's acceptance at Drexel, the nature of the five-year program there, and her intent to seek residence near the campus. The judge noted that, unlike the facts underlying the Court's decision in Gac v. Gac, 186 N.J. 535 (2006), [t]his is not a situation where after all the expenses are incurred there's a request to contribute, rather the request is made before the choice of school. However, the choice of school is, quite frankly, hidden from Mr. Camuso by both [the son] and his mother, which prevented any opportunity to participate meaningfully in course selection, choice of school and . . . perhaps knowing more about finances. So there was really no meaningful communication specifically about the particular educational decision made by [the son].
Further, the judge noted that the Drexel program was a five-year one, and as a result, defendant would be required to pay an additional year of child support, as well as tuition. Yet, defendant had no input on the major decision of what college to attend or the costs to be incurred.
The judge concluded that, if factor number 11 was "going to mean anything under the Newburgh analysis," it had to encompass an evaluation of the quality of the communication between the child and parent on the choice of school, course of study and the parent's final financial obligation. Here, there was no meaningful communication. The judge held:
Under the circumstances of this case the court finds that Mr. Camuso's motion should be granted in part. And the court has considered all of the Newburgh factors and many of them, if not all of them, support paying for a college education. Paragraph 11 is not being relied upon in this court exclusively, although in order to give it meaning there must be some import to Factor Number 11. And while Gac says a relationship alone is not dispositive, to the extent that meaningful communication is more important than the relationship, both the relationship issue and the meaningful communication are lacking in this case. Mr. Camuso cannot be held . . . completely responsible for the estrangement of this relationship. The court found that Ms. [Agos] and [the son] himself share equal responsibility.
The judge found that, while defendant knew he was expected to contribute to his son's education, and he knew the type of college that the son was interested in, "he did not know he was going to Drexel and was precluded from asking anything or participating in any process about Drexel until months after [the son] makes the choice and he gets hit with an e-mail saying . . . by the way, your 60 percent is expected." That, in the judge's view, did not constitute meaningful communication. Accordingly, the judge granted the limited relief that we have specified. This appeal followed.
On appeal, plaintiff argues that defendant should have been compelled to fulfill his obligation to pay sixty percent of the son's college costs as set forth in the marital settlement agreement. Plaintiff argues additionally, that the judge erred in conditioning the payment of future tuition on the establishment of meaningful communication, asserting "it gives defendant the right to refuse to pay merely by complaining as he did in the past."
We reject plaintiff's arguments, finding the judge's factual determinations to have been properly supported by evidence in the record, MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007), and the decision to have constituted a proper use of the judge's discretion. Gac, supra, 186 N.J. at 547; Moss v. Nedas, 289 N.J. Super. 352, 360 (App. Div. 1996). We affirm the order entered by Judge DeBello, basing our decision substantially on the thoughtful oral decision rendered by him.
We add only the following. We have held in similar circumstances:
Although the court will enforce an agreement to the extent it is just and equitable, when it appears no longer fair to do so, the court is not bound by the agreement or its prior orders. Lepis v. Lepis, 83 N.J. 139, 146-48 (1980). Thus, "if circumstances have changed in such a way that requiring defendant to pay for college would no longer be equitable and fair, the court also remains free to alter the prior arrangement." Id. at 161 n.12. [Moss, supra, 289 N.J. Super. at 359-60.]
Here, the judge properly considered Newburgh's factors in determining that enforcement of the marital settlement agreement as it applied to the payment of college expenses would not be fair and just in the circumstances presented. In doing so, the judge recognized that the cause of the continued estrangement between defendant and his son was a factor to be considered in assessing defendant's obligation to pay a portion of the son's tuition. Gac, supra, 186 N.J. at 544. Further, he recognized that the non-existence of a familial relationship between defendant and his son did not necessarily eliminate defendant's obligation. Id. at 546. Instead, the judge's primary focus was on the question of whether communication among plaintiff, the son and defendant existed that would have satisfied defendant's often-expressed desire to know of and participate in the son's educational decisions. We find the judge's determination that the lack of any communication rendered the requirement that defendant contribute to the son's educational costs inequitable to have been consistent with the Supreme Court's decision in Gac, id. at 546-47 and our decision in Moss, supra, 289 N.J. Super. at 359. Accordingly, we affirm the judge's order.