EUGENE J. DUNN, III, Plaintiff-Appellant,
MELODIE R. DUNN, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 4, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1395-95.
Marc A. Lario & Associates, attorneys for appellant (Marc A. Lario, on the brief).
Respondent has not filed a brief.
Before Judges Espinosa and Guadagno.
Plaintiff appeals from provisions in two post-judgment orders. Although the parties' property settlement agreement (PSA) provided for joint legal custody of their two children, it is undisputed that plaintiff has not maintained a relationship with either child. The circumstances of that estrangement are disputed. Plaintiff appeals from Paragraph 1 of an order dated December 11, 2009, which requires him to pay 75% of the children's college expenses pursuant to the PSA, arguing that he should not be obligated to pay for these costs since he has no relationship with either daughter. He also appeals from Paragraph 2 of an order dated February 9, 2011, which denied his motion for reconsideration of a prior order that enforced his college support obligation and ordered that this obligation be retroactive rather than prospective. For the reasons that follow, we reverse and remand this matter for further proceedings.
Plaintiff and defendant were married and had two daughters together: Brittany, born in 1987, and Jillian, born in 1991. Their Judgment of Divorce (JOD), dated June 27, 1995, incorporated the PSA. Article II, Paragraph 5 of the PSA states, in pertinent part,
It is specifically understood and agreed by and between Husband and Wife that both parties have an obligation to contribute toward the college education of their children, taking into consideration at the time each child attains the appropriate age the respective income and assets of the parties. The parties agree to consult with a view toward adopting a harmonious policy concerning the college education of the children. The parties agree to contribute jointly toward the costs according to their respective financial resources available at the appropriate time.
In July 2009, plaintiff filed a motion seeking termination of his child support obligations. He attached a certification to his motion, stating he had "essentially no relationship" with his daughters because, "despite [his] best efforts, [he] was not 'allowed' to see [them]." He explained he was seeking termination of his support obligations because he believed that Jillian was emancipated and that Brittany, who was attending college in North Carolina, was supporting herself financially. He further stated he "had no input in [Brittany's] decision to attend college."
Defendant opposed the motion and cross-moved for an order requiring plaintiff to contribute toward the children's college education expenses, among other things. Although Brittany started college in the fall of 2006, this cross-motion in 2009 was the first time defendant sought any contribution from plaintiff pursuant to the terms of the PSA. In her certification, defendant disputed plaintiff's claim that he had been denied the opportunity to see the children. She stated that plaintiff had disassociated himself from the girls, in addition to several other family members, and that he "has no relationships with anyone except his parents." She further stated that "Brittany is clearly not currently in a position to support herself and Jillian is not emancipated." Rather, Jillian had recently enrolled in community college, which she was scheduled to begin in the fall of that year, and had plans to eventually transfer to a university to complete her degree. Defendant did not deny that plaintiff had not been consulted regarding Brittany's selection of a college. Rather, she stated, "Brittany is a straight A honor student capable of choosing her own college[.]"
In his reply certification, plaintiff reiterated that he "did everything in [his] power to establish a relationship with [the] children only to be put off at every opportunity and attempt by the defendant[, ]" and citing examples thereof. He further stated that "defendant[ had] absolutely refused to discuss with [him] the college education of the children" and that he ...