July 18, 2013
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 "never had any say in any of their educational decisions . . . ."
Despite the conflicting assertions in the certifications, no plenary hearing was conducted. The trial court issued an order, dated September 18, 2009, denying plaintiff's request to terminate his support obligations. Citing L.V. v. R.S., 347 N.J.Super. 33, 41 (App. Div. 2002), the court stated, "[t]he absence of a meaningful relationship does not relieve [a] legally obliged parent from providing support for [his] child's basic needs." The court found that the children had not yet reached emancipation and that, until then, both parents would continue to be responsible for their children's support. The court denied defendant's request that plaintiff be required to contribute toward the girls' college expenses, finding that the court was unable "to make an accurate determination" because neither party had addressed the factors identified in Newburgh v. Arrigo, 88 N.J. 529 (1982), which apply to the evaluation of a claim for contribution toward the cost of higher education. See id. at 545. The court did, however, order plaintiff to provide defendant with bonds he had purchased for his daughters,  which were to be used toward their college expenses. In the final paragraph of the order, the court stated,
Jillian is to communicate with her father about her schooling situation, where she is attending, what courses she is attending, etc. Jillian is to provide a copy of her grades and transcripts. If she fails to do same, Plaintiff is free to return to Court to make an adjustment.
In October 2009, defendant filed a motion for reconsideration of that portion of the order that denied her request for contribution toward the children's college expenses. Plaintiff filed a cross-motion, seeking, among other things, termination of his support obligations as to Jillian "based upon her failure to provide the information  required by the September 18, 2009 Court Order." In a reply certification, defendant addressed each of the Newburgh factors and stated further that Jillian had "every intention of complying with the Court's directive[, ]" but was "still in the midst of the current semester" and thus did not yet have any grades or information to produce. She stated that Jillian would "timely provide" the requested information once it became available to her. Defendant did not address the requirement that Jillian communicate with her father.
At oral argument, defense counsel repeatedly stated that defendant was "not looking for back contribution" but was instead "looking to the future." In his oral decision, the motion judge granted defendant's motion for reconsideration, and stated plaintiff's obligation regarding college expenses would be would be prospective. The judge did not discuss the Newburgh factors in either his oral decision or in the order. Paragraph 1 of the December 11, 2009 order stated:
As set forth under their PSA the parties are to contribute towards their daughters' college educations according to their respective income and assets at that time. Accordingly, the Court finds it appropriate for Defendant to pay 25% and Plaintiff to pay 75% of their children's college expenses.
The order was thus silent as to whether plaintiff's obligation to contribute to college expenses was prospective, as requested by defendant, or retroactive. The order also denied plaintiff's request that his support obligation be terminated as to Jillian.
Counsel for both parties subsequently requested that the court supplement the record for the December 11, 2009 order to set forth its analysis of the Newburgh factors. In Newburgh, the Supreme Court directed:
In evaluating the claim for contribution toward the cost of higher education, courts should consider all relevant factors, including (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.]
The motion judge found that all of the Newburgh factors were "met except for number eleven[.]" Although the parties' certifications gave conflicting accounts regarding the reason for plaintiff's lack of relationship with his daughters, the motion judge relied on defendant's certification that plaintiff's relationship with their daughters had not been inhibited and that plaintiff had failed to take advantage of his many opportunities to develop relationships with them. The judge did not evaluate any of the other Newburgh factors and found the PSA to be "the primary factor" and "determinant" in his decision.
In October 2010, defendant filed a motion to enforce litigant's rights, seeking, among other things, enforcement of plaintiff's child support obligation. Plaintiff, who had lost his employment in September 2010, filed a cross-motion seeking a recalculation of his support obligation and a denial of defendant's request for contribution toward the children's college expenses. These motions were heard by a different judge than the one who had entered the December 11, 2009 order.
After conducting oral argument, the court entered an order that, among other things, granted defendant's requests to enforce the paragraphs of the December 11, 2009 order regarding child support and college expenses. Plaintiff filed a motion for reconsideration, again seeking a recalculation of his child support obligations in light of his loss of employment, as well as an order clarifying that his obligation to contribute to college expenses be prospective, in accord with the first motion judge's oral decision. Defendant filed a certification in opposition.
Following oral argument, the second motion judge denied plaintiff's motion for reconsideration. The order denying plaintiff's request to conform his obligation to that stated by the first motion judge in his oral decision, included Paragraph 2, which stated:
The parties' [PSA] was incorporated into the [JOD] on June 27, 1995. The [PSA] contained a specific provision that both parties had a responsibility to pay for the children's college educations. [The first motion judge] clarified the December 11, 2009 Court order on May 19, 2010 with an oral decision that the provision providing for college contributions would be adhered to and [plaintiff] would then be responsible for his respective share based on his income and assets. The Court finds bad faith on [the] part of [plaintiff] for not acknowledging the May 19, 2010 oral decision in his motion for reconsideration that was requested by both part[ies'] attorneys. The Court relied upon the [PSA] since the December 11, 2009 order was silent to the matter of retroactivity. The Court found that since the entry of the PSA in 1995 both parties have always had an obligation to fund the children's college education, if they sought one.
There has been additional motion practice that need not be recounted for the purpose of this appeal.
In his appeal, plaintiff argues that the motion judge erred in requiring him to contribute to college expenses by improperly evaluating the Newburgh factors and not conducting a plenary hearing. In the alternative, he argues that if he is required to contribute to the children's college expenses, the obligation be made prospective.
The trial court has "substantial discretion" in deciding the issue of contribution to college expenses. Jacoby v. Jacoby, 427 N.J.Super. 109, 116 (2012); see also Pascale v. Pascale, 140 N.J. 583, 594 (1995). "'If consistent with the law, [the] award will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice.'" Jacoby, supra, 427 N.J.Super. at 116 (quoting Foust v. Glaser, 340 N.J.Super. 312, 315-16 (App. Div. 2001).
In requiring plaintiff to pay 75% of college expenses, the first motion judge "determined . . . that the [PSA] would be adhered to . . . [and] that [the PSA] is the primary factor . . . and, frankly, will be the determinant piece of this particular action." The judge's consideration of the Newburgh factors was limited:
[A]ll of them are met except for number eleven which is challenged by the plaintiff indicating, one, that his relationship . . . has not been good  with both children, and he has had no part in making the decision about . . . college and he's been barred at every point in . . . developing a relationship with the children[.]
Although it was undisputed that plaintiff had been excluded from the decision-making process regarding college, the judge discounted this factor and relied on defendant's assertion in her certification that she had not impeded the relationship between plaintiff and his children.
We agree with plaintiff that the motion judge's analysis of the Newburgh factors was flawed. When making a decision regarding the obligation of a parent to contribute to college expenses, "the judge has 'an obligation under Newburgh and N.J.S.A. 2A:34:23(a) to consider all the enumerated factors'" and should not base its decision on any single factor. Gotlib v. Gotlib, 399 N.J.Super. 295, 309 (App. Div. 2008) (quoting Raynor v. Raynor, 319 N.J.Super. 591, 617 (App. Div. 1999)).
In requesting to be relieved of his obligation to contribute to the college expenses of his children, plaintiff sought a modification of a term contained in the PSA. Because matrimonial settlement agreements are "essentially consensual and voluntary in character, " they are "'entitled to considerable weight with respect to their validity and enforceability' in equity, provided they are fair and just." Dolce v. Dolce, 383 N.J.Super. 11, 20 (App. Div. 2006) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)); see also Lepis v. Lepis, 83 N.J. 139, 153 (1980). A party who seeks modification of support obligations from the court must make a prima facie showing "that its terms, in light of changed circumstances, are unfair and unjust." Petersen, supra, 85 N.J. at 644; see also Lepis, supra, 83 N.J. at 148-49; Isaacson v. Isaacson, 348 N.J.Super. 560, 579 (App. Div.), certif. denied, 174 N.J. 364 (2002); Brawer v. Brawer, 329 N.J.Super. 273, 284 (App. Div.), certif. denied, 165 N.J. 138 (2000) (stating that a PSA is "subject to amendment by the court when changed circumstances make its enforcement inequitable").
Thus, the motion judges were entitled to give the college expense provision in the PSA considerable weight in determining this issue. However, the fact that the parties addressed this issue in their PSA is not dispositive of the issue. "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." Moss v. Nedas, 289 N.J.Super. 352, 359 (App. Div. 1996) (citing Lepis, supra, 83 N.J. at 146-48). Like any request to modify the terms of a PSA, "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 359-60 (quoting Lepis, supra, 83 N.J. at 161 n.12).
The change in circumstances at issue here concerns Newburgh factor eleven, which considers "the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance[.]" Newburgh, supra, 88 N.J. at 545. We are mindful that a relationship is "not required for the custodial parent or the child to ask the noncustodial parent for financial assistance to defray college expenses." Gac v. Gac, 186 N.J. 535, 546 (2006). Still, the absence of a relationship, along with other factors, may render a requirement that a non-custodial parent contribute to college expenses inequitable.
In Moss, supra, the parties agreed in their PSA that they would both contribute toward the cost of their child's college education "in proportion to their ability to contribute[.]" 289 N.J.Super. at 354. However, we found no abuse of discretion in the Family Court's decision that it was no longer appropriate to require the non-custodial parent to share college expenses in light of his financial resources and "the absence of any meaningful relationship" between him and his daughter. Id. at 360.
In Gac, supra, the parties had not agreed as to parental contribution toward college expenses in any settlement agreement. The non-custodial parent had no relationship with his daughter from the time the parties divorced, when she was nine, but had paid child support. Id . at 538-39. The custodial parent did not seek contribution for college expenses until after their daughter had graduated from college and after the non-custodial parent sought to terminate his child support obligation. 186 N.J. at 547. The Supreme Court observed that the delay in requesting a contribution deprived the noncustodial parent of an opportunity to "participate in [the child's] educational decision as well as to plan for his own financial future[, ]" which, the Court stated, "weighs heavily against ordering him to contribute to her educational expenses after her education was completed." Id . at 546. The Court stated,
Obviously, the factors set forth in Newburgh and reaffirmed today contemplate that a parent or child seeking contribution towards the expenses of higher education will make the request before the educational expenses are incurred. As soon as practical, the parent or child should communicate with the other parent concerning the many issues inherent in selecting a college. At a minimum, a parent or child seeking contribution should initiate the application to the court before the expenses are incurred. The failure to do so will weigh heavily against the grant of a future application.
[Id. at 546-47.] The Court concluded that the belated request to seek contribution after the expenses were incurred and after the noncustodial parent sought to terminate his child support obligation were "significant" facts that "tip the scale in favor of denial of plaintiff's request for contribution." Id. at 547.
In Gotlib, supra, the parties' PSA contained a provision regarding contribution toward college expenses that stated both parents would "contribute to the college costs of the children in accordance with appropriate legal standards." 399 N.J.Super. at 310. The judgment of divorce further provided, "Both parents shall have full input on the college . . . that the child will attend with the child involved." Id. at 307. As in Gac, contribution for college expenses was sought "long after [the] expenses had been incurred" and the non-custodial parent had been "exclud[ed] from the decision making process . . . ." Id. at 310. Nonetheless, the motion judge ordered the noncustodial parent to pay one-half of the children's higher education expenses. Ibid. In reversing this order, we stated, "Participation by both parents is an essential factor under Gac, expressly required by the JOD, and should have 'weigh[ed] heavily against the grant of a future application.'" Ibid. (quoting Gac, supra, 186 N.J. at 547).
Thus, the delay in seeking a contribution until after college expenses are incurred and the exclusion of a parent from participating in college-related decisions are factors with significant impact on the equity of enforcing a provision in a PSA that requires contribution to college expenses. This is particularly true where that provision also requires the parties to consult with each other regarding those decisions, as is the case here.
Here, it is undisputed that plaintiff was not consulted or included in either daughter's college-selection process and was not asked for contribution until after he filed a motion to terminate his child support obligations and his older daughter was a senior in college. Because the PSA required the parties to "consult with a view toward adopting a harmonious policy concerning the college education of the children[, ]" the exclusion of plaintiff from any participation violated the terms of the very provision defendant sought to enforce.
The motion judges failed to give appropriate weight to these factors in determining whether it was fair and just to require plaintiff to contribute to the college expenses here and, if so, in what amount. Accordingly, it is necessary to reverse the orders appealed from and remand to the trial court to make findings of fact and conclusions of law. See Gac, supra, 186 N.J. at 543. In so doing, since the parties submitted conflicting certifications as to the circumstances of plaintiff's estrangement from his daughters, the trial court should also determine whether a plenary hearing is required to resolve these or any other relevant disputed facts. In light of this decision, we need not address plaintiff's alternative request for relief.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.