On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1284-98C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Reisner and Hayden.
In this post-judgment matrimonial matter, defendant B.F.*fn1 appeals from the February 7, 2011 Family Part order granting the motion of plaintiff, W.P., to require defendant to reimburse him for past college expenses and allowing him to take dependency tax deductions for the parties' two younger children and denying her cross-motion to emancipate her middle son. She also appeals from the April 27, 2011 Family Part order denying her motion for reconsideration and requiring her to reimburse plaintiff's counsel fees. We affirm.
Plaintiff and defendant married in 1976 and divorced in 2000. They had three sons during their marriage, born in 1981, 1989 and 1992. The parties entered into a property settlement agreement (PSA), which was incorporated into the final judgment of divorce.
The PSA provided that "a college education shall consist of five (5) years as long as the child is considered a full-time student as defined by the institution he attends." Additionally, the PSA provided that "the five year period may be extended if an extension is due to an illness or disability of the child, or a change in a child's curriculum requiring additional courses." Further, the PSA provided for defendant to take the youngest child as a dependency tax deduction and plaintiff to claim the middle child.
The parties' oldest child was emancipated in 2003. At the time of the order under appeal the two younger children were over the age of eighteen and attending college. Since 2007, the youngest child has lived with plaintiff, and the middle child has lived with him since 2008. Defendant is required to pay child support to plaintiff. Plaintiff is a veterinarian who has substantial assets. Defendant also has assets but is currently unemployed and receiving unemployment benefits.
On December 8, 2010, plaintiff filed a motion to enforce litigant's rights. Among other relief, plaintiff sought reimbursement of previously incurred college expenses, designation as parent of primary residence of the two younger children, and permission to claim the youngest child as a dependency deduction on his income tax. On January 14, 2011, defendant filed a cross-motion requesting emancipation of the middle child and a decrease or termination of child support. Defendant alleged that their middle son was not a full-time student at Rutgers so under the PSA she was not required to pay her share of his college expenses. She also alleged that her child support must be reduced as she was unemployed and had numerous health issues that prevent her from obtaining gainful employment.
In his reply certification, plaintiff contended that their son is a full-time student and that the son's difficulties in college resulted from chaos created by defendant's actions. Additionally, he submitted that his son's education had suffered from defendant's failure to timely pay her share of the tuition, resulting in the son being forced to register for classes late. Since his major was engineering, he could often only get into classes that were too challenging for him. Further, plaintiff argued that a reduction in child support was not warranted as defendant was voluntarily unemployed.
On February 7, 2011, Judge Michael A. Guadagno denied defendant's request to emancipate the middle son without prejudice. He pointed out that defendant had not provided proof that her son was not a full-time student. He observed that even if defendant's claim that her son was performing poorly was accurate, poor performance in school, standing alone, is not a sufficient reason to justify emancipation. The judge ordered defendant to reimburse plaintiff $9,297 for the college expenses already incurred, but he reduced the percentage of defendant's future contribution to college expenses from 80% to 50% based upon her current financial condition. He also denied defendant's request for a reduction in child support, finding that she had not demonstrated a permanent incapacity to work or shown that her unemployment was not temporary.
In addition, the judge granted plaintiff's request to change the PSA to allow him to take the dependency tax deduction for his younger son in addition to his middle son. The judge found that plaintiff had demonstrated that he qualified for the deduction under the Internal Revenue Code as he had been the de facto parent of primary residence and had financially supported both sons for many years. Moreover, the judge found the change in residency constituted a change of circumstance since the time of the PSA. However, the judge denied plaintiff's request for defendant to pay his attorneys fee.
On March 1, 2011, defendant filed a motion for reconsideration of that part of the judge's order that denied emancipation, ordered reimbursement for past college expenses, and permitted plaintiff to take the youngest son as a tax deduction. In her motion papers, defendant submitted the middle son's college transcripts, which confirmed her claim that he was not doing well in school. For example, in Spring 2010, he was registered as a full-time student, but he withdrew from one class, failed two classes and received a B in the remaining class. In Fall 2010, he again registered as a full-time student, then withdrew from one class and received a B, B, D, and F in the other four classes. Over the last three semesters, the son had only accumulated seventeen credits.
Defendant also argued that she should not have to pay the full amount of the past tuition expenses. Defendant contended that her mother, the son's maternal grandmother, had given the son five thousand dollars for college expenses. Defendant wanted those funds to be credited toward her contribution required by the PSA. Defendant also requested a further readjustment ...