January 4, 2013
LAURI CARUSO, PLAINTIFF-RESPONDENT,
CHARLES WHITLOCK, III, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FD-03-988-96.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 14, 2012
Before Judges Fisher and Waugh.
Defendant Charles Whitlock, III, appeals the Family Part's November 29, 2011 order requiring him to contribute to the college expenses of his daughter. We remand to the Family Part for further consideration consistent with this opinion.
We discern the following facts and procedural history from the record on appeal.
Whitlock and plaintiff Lauri Caruso are the parents of a daughter born in 1993. As of November 2010, Whitlock's child-support obligation was $81 per week, based upon his gross weekly income of $475 and Caruso's gross weekly income of $1020. The child-support worksheet that resulted in the $81 support order reflects that Whitlock's adjusted child-support obligation, taking into account his deduction for another dependent child not related to Caruso, would have been $86, but that it was reduced to $81 because of the self-support reserve. See Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5.6A at 2546 (2013) ("The self-support reserve is 105% of the U.S. poverty guideline for one person. It attempts to ensure that the obligor has sufficient income to maintain a basic subsistence level and the incentive to work so that child support can be paid."). In June 2011, the Family Part granted Caruso's application for an order requiring Whitlock to pay twenty-seven percent of unreimbursed medical expenses.
In August 2011, Caruso filed an application seeking to require Whitlock to contribute to their daughter's college expenses, as well as an order requiring him to bring his arrears current. The parties appeared before the judge assigned to the Family Part non-dissolution calendar on November 29, 2011.
The record of that hearing reflects that the daughter was already attending Rider University, that Caruso did not discuss the selection of the college with Whitlock because "he doesn't have a relationship with [the daughter] at all," that the daughter was receiving "minimal grants" of $1625, that the total tuition for one semester was $16,490, that there were student loans taken out by the daughter and a loan taken out by Caruso, that Whitlock testified he "had not been involved in any decisions in [the daughter's] life," that he was in favor of his daughter attending college, that the daughter received a settlement of $8000 from an automobile accident, that $2000 of those funds were used for college-related expenses, that the daughter considered Rutgers - The State University but preferred Rider because it was smaller, that the daughter owned two cars, that the parties blamed each other for the lack of relationship between father and daughter, and that Whitlock's wife had recently returned to work following a period of unemployment resulting from a layoff.
Based upon those facts, the judge entered an order requiring Whitlock to pay twenty-seven percent of the daughter's net college expenses. That percentage was based on Whitlock's percentage of the total child-support obligation as calculated on the 2010 worksheet. For the fall semester in 2011, his obligation was set at $3430. The judge required that Whitlock's reimbursement check be made payable directly to Caruso's lender. The judge also ordered that Whitlock pay $100 monthly for arrears in child support and medical expenses. This appeal followed.*fn1
On appeal, Whitlock argues that the judge (1) failed to make adequate findings of fact, (2) failed to fully consider the Newburgh factors,*fn2 and (3) failed to consider the needs of his other child. He also argues that the judge should have permitted discovery and held a plenary hearing.
We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges following an evidentiary hearing. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Although there was no formal trial or plenary hearing in this case, the judge heard testimony and argument from the parties while they were under oath. Finally, a judge's purely legal decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)); LoBiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).
The disposition of Caruso's application turned on the judge's evaluation of the Newburgh factors. The judge was required to consider "all relevant factors," including, but not limited to:
(1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education;
(2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education;
(3) the amount of the contribution sought by the child for the cost of higher education;
(4) the ability of the parent to pay that cost;
(5) the relationship of the requested contribution to the kind of school or course of study sought by the child;
(6) the financial resources of both parents;
(7) the commitment to and aptitude of the child for the requested education;
(8) the financial resources of the child, including assets owned individually or held in custodianship or trust;
(9) the ability of the child to earn income during the school year or on vacation;
(10) the availability of financial aid in the form of college grants and loans;
(11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and
(12) the relationship of the education requested to any prior training and to the overall long-range goals of the child. [Newburgh, supra, 88 N.J. at 545.]
Although the judge did not cite to Newburgh, we are satisfied from the colloquy during the hearing that she had those factors in mind during the hearing and in rendering her decision.
Having reviewed the record on appeal in light of the applicable law, we have concluded that a remand is required for further consideration of the Newburgh factors on a fuller record. The judge should supplement the record as necessary and, in particular, give further consideration to Newburgh factors (3), (4), (6), (8), (9), and (11), as well as other relevant considerations raised by the parties or articulated by the judge.
As noted above, when Whitlock's child-support obligation was most recently calculated, a reduction was required to implement the self-support reserve. If required to pay $3430 for two semesters per year, Whitlock's overall support obligation, not including medical reimbursements, would be increased by approximately $132 per week, which is significantly more than the basic child-support obligation itself. We have concluded that the record does not reflect sufficient analysis of Whitlock's ability to pay for his daughter's net college expenses at that level in light of his overall financial situation, including his continuing obligation to support his daughter through child support to her mother and his obligations to his other child.
We also note that the daughter chose a private college as opposed to a public institution. While we do not suggest that she should not be able to attend the college of her choice, the judge ought to consider whether, given her father's financial situation, his contribution should be based on the tuition of a public rather than a private college, or based on a lower percentage of the actual tuition at Rider, or whether it should be made payable over a longer period of time, or some combination of those approaches. See Finger v. Zinn, 335 N.J. Super. 438, 444-45 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001).
We further note that the judge did not consider the daughter's ability to earn money for her college tuition during vacations, which is part of Newburgh factor (9). On remand, the judge should also more fully explore the amount and disposition of the settlement funds mentioned during the hearing.
Finally, the judge failed to resolve the issue of the cause of the apparent long-term estrangement between father and daughter. Although not necessarily determinative, the source of the estrangement can inform the judge's exercise of discretion on the issue of college expenses, as can the timing and manner of the request for financial assistance. See Gac v. Gac, 186 N.J. 535, 546-47 (2006).
We leave to the judge's discretion the amount, if any, of discovery required prior to the remand hearing. At the very least, there should be updated and fully completed case information statements from both parties and an exchange of documents concerning tuition, the various loans, the settlement, and the daughter's courses and grades.*fn3 See Van Brunt v. Van Brunt, 419 N.J. Super. 327 (Ch. Div. 2010). Inasmuch as neither of the parties has significant assets, the remand proceedings should be tailored to provide the additional information required and an opportunity to explore and consider the issues noted above, but need not be expanded to a full-blown trial.
Remanded. We do not retain jurisdiction.