Opinion
DOCKET NO. A-4931-13T3
06-05-2015
SETH DUNN, Plaintiff-Appellant, v. JANINE CERRA, Defendant-Respondent.
Seth Dunn appellant, argued the cause pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and O'Connor. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1662-11. Seth Dunn appellant, argued the cause pro se. Respondent has not filed a brief. PER CURIAM
Plaintiff Seth Dunn (father) appeals from the February 14, 2014 Family Part order denying his motion to compel defendant Janine Cerra (mother) to contribute toward their son's private school tuition, as well as the May 20, 2014 order denying his motion for reconsideration of the February 14, 2014 order. We reverse and remand for further proceedings consistent with this opinion.
I
The parties were divorced on March 1, 2001. They have one son, presently eighteen years of age. The Property Settlement Agreement into which the parties entered at the time of their divorce is not in the record and few details about the procedural history of this post-judgment matter were provided. But we glean from what has been provided that the father has been the child's primary caretaker since at least 2011 and, in September 2011, the father enrolled the parties' son into a private high school. The child graduates from this school in June of this year.
The father claims that in 2011 the mother agreed to contribute $4800 per year toward the child's annual tuition of $11,500 after financial aid provided by the school. The annual tuition has remained the same throughout his four years of attendance. In February 2011, the father forwarded to the mother a form of consent order that memorialized this alleged agreement, but the mother declined to sign it. The mother has never contributed toward the child's tuition.
We do not have a copy of what prompted review of the mother's child support obligation to the father, but we discern that, in the fall of 2013, the parties were called to appear before a Child Support Hearing Officer, see Rule 5:25-3(b)(2). Our record contains a November 6, 2013 form letter from an attorney with the Morris County Office of Temporary Assistance advising that the father filed a motion, but the motion itself is not included in the record. It appears that, at some point, the father sought, among other things, to compel the mother to reimburse him for her agreed upon share of the tuition since the child entered private school in 2011. His application was heard by the hearing officer, who recommended against granting this request.
In accordance with Rule 5:25-3(d)(2), the father appealed that recommendation to a Family Part judge who, after hearing the matter de novo, denied the father's application. The court concluded that private school tuition is not includable as an expense a parent must pay under the Child Support Guidelines (Guidelines). See R. 5:6A (adopting Guidelines set forth in Appendix IX-A to the Court Rules).
The father filed a motion for reconsideration. The mother filed a certification in response claiming she had never agreed to contribute to the child's private school tuition and that a prior similar application by the father had been denied by the court in 2011. On May 20, 2014, the court denied the father's motion for reconsideration because he failed to submit proof the mother had agreed to share these expenses. The court also noted that, while the Guidelines do not require a parent to contribute to such an expense, a court may in its discretion order him or her to do so if the other parent files the appropriate motion. Because the father had not done so, the court denied his motion.
II
Our review of a trial court's factual findings is limited, and we will not disturb them when "supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). However, we employ an expanded standard of review over the trial court's evaluation of the law and factual implications. In re J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993).
A court has the authority to order a parent to contribute to a child's private school education. In Hoefers v. Jones, 288 N.J. Super. 590 (Ch. Div. 1994), aff'd, 288 N.J. Super. 478 (App. Div. 1996), we adopted a fourteen-factor test that a court must use to determine whether a parent should be required to contribute to private school tuition:
(1) Ability of non-custodial parent to pay.
(2) Past attendance of one or both parents at that or a similar private school.
(3) Whether children were attending private school pre or post divorce.
(4) Prior agreement of non-custodial parent to pay, to send children to private school.
(5) Religious background of the parties, their children.
(6) Are special educational, psychological and/or special needs of child met, advanced by such private schooling?
(7) Generally, is it in the child's best interest to attend, or to continue to attend, private school (is the academic environment in child's best interest?).
(8) Whether court order or agreement of parties prefers specific right of school choice on residential custodial parent.
(9) Were actions of residential custodial parent to enroll or to continue to enroll the children reasonable under the circumstances?
(10) Is such private school tuition permitted or authorized as part of that state's child support guidelines, or by other law(s)?
(11) Ability of child to respond, prosper from this educational experience; will such schooling be of particular benefit to him or her?
(12) Lack of present, past non-custodial parental involvement in children's education.
(13) Degree of involvement of custodial parent in children's education (is it extensive?).
(14) Is residential custodial parent's views, desires consistent with past practices regarding private school education?
[Id. at 611-12.]
Here, there was a disputed question of fact whether the mother agreed to contribute toward tuition costs. The father claimed she had agreed but the mother asserted she had not. That dispute could not have been resolved on the basis of the parties' conflicting certifications and required an evidentiary hearing. Furthermore, since neither party provided a record of the prior 2011 decision on that issue, the court did not have a basis to conclude that the mother in fact had never agreed to contribute toward the tuition.
"When faced with evidence of disputed material facts, a judge must permit a plenary hearing in order to reach a resolution." Milne v. Goldenberg, 428 N.J. Super. 184, 201 (App. Div. 2012) (citing Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006)). Here, the court was correct in requiring a motion to be filed to determine whether contribution to private school tuition should be ordered as a supplemental expense of the child. The father persisted in asking that it be included in the child support calculation, and the court correctly denied that request. However, the father's motion for reconsideration could and, in the interest of efficiency and fairness to the parties, should have been viewed as the necessary motion to order such a contribution. We are therefore constrained to remand this matter so that hearing can be conducted and this factual issue resolved.
If there is an enforceable agreement, then that agreement must be enforced. If there is no agreement, the issue becomes whether the mother is obligated to reimburse the father for a portion of the tuition, a determination that cannot be made until after a consideration of the Hoefers factors. However, the court cannot rule upon such issue until it holds a plenary hearing to resolve any disputed issues of material facts raised by the mother in her response.
We note, without finding, that the father's request that the mother contribute toward tuition expenses may be limited by N.J.S.A. 2A:17-56.23a, which, in general, prohibits the retroactive modification of child support orders prior to the time of filing an application for modification. The record does not show whether or when the father initially filed a motion to compel the mother to contribute toward these expenses.
Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION