Opinion
DOCKET NO. A-3229-12T3
07-11-2014
MIRIAM FERRER, Plaintiff-Respondent, v. CARLOS REYNALDO, Defendant-Appellant.
Adrian Bermudez, attorney for appellant. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Alvarez.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2821-97.
Adrian Bermudez, attorney for appellant.
Respondent has not filed a brief. PER CURIAM
Defendant Carlos Reynaldo appeals from paragraph four of a Family Part order of February 1, 2013, setting his child support payment at $139 per week, contending that the motion court improperly calculated this amount by using the Child Support Guidelines even though his daughter is a college student living on campus. We agree and remand to the motion court to recalculate child support under N.J.S.A. 2A:34-23(a).
Defendant and plaintiff Miriam Ferrer are divorced. They have two children, Janessa, born May 1985 and Gabriella, born June 1992. Janessa has been emancipated as of September 2004. Gabriella, twenty years old at the time of the hearing, was a full-time student at Rutgers University.
On September 5, 2012, defendant filed a motion to terminate or reduce child support payments, alleging that Gabriella was of legal age and emancipated. Plaintiff opposed the motion on the grounds that Gabriella was a full-time student and was thus not emancipated. Defendant also filed a motion to correct an error in an earlier June 29, 2012 child support calculation based on a cost-of-living (COLA) increase in the amount of support he was paying for another child.
The court heard arguments on February 1, 2013. Gabriella testified that she was a full-time student at Rutgers University and detailed her plan to take the classes she needed to graduate. Defendant's counsel did not contest this testimony. Defendant also presented evidence of the increase in his child support payment for his other child, to be factored into the reduction of child support for Gabriella.
The motion court found Gabriella's testimony to be credible, determined that she was a full-time student at Rutgers and declined to emancipate her. Pursuant to the parties' Property Settlement Agreement (PSA) created at the time of their divorce, the court ordered defendant and plaintiff to each pay fifty percent of Gabriella's tuition, room and board and other university fees. The motion court also granted defendant's motion to correct his child support, using the increased support obligation for his other child to calculate a new amount pursuant to the Child Support Guidelines. The court set this new payment at $139 per week, down from $14 3 under the June 29, 2012 order.
At the hearing, defense counsel raised concerns that the $139 per week calculation was "double-dipping" because Gabriella lived on campus and thus her education expenses included room and board. Although the court acknowledged this concern, it declined to alter the calculation, citing the fact that the worksheet calculation included income imputed to plaintiff, even though at the time she was unemployed and on disability. The court thus entered an order on February 1, 2013 setting child support at $139 per week.
Defendant appeals only from paragraph four of this order, which sets the child support amount. In this appeal, defendant argues
I. RESORT[ING] TO THE CHILD SUPPORT GUIDELINES TO MAKE SUPPORT CALCULATIONS FOR COLLEGE STUDENTS LIVING AWAY FROM HOME IS ERR[ONEOUS].
II. WHEN CALCULATING THE AMOUNT OF CHILD SUPPORT DUE FOR CHILDREN ATTENDING UNIVERSITY FULL-TIME WHILST LIVING ON CAMPUS, THE COURT MUST TAKE INTO CONSIDERATION THE CHILD'S INDIVIDUAL NEEDS, ASSESS THE INCOME, DEBTS, EARNING ABILITY, AGE AND HEALTH OF THE CHILD AND OF EACH PARENT TO DETERMINE AN APPROPRIATE LEVEL OF SUPPORT.
I.
When reviewing decisions granting applications to modify child support, we examine whether, given the facts, the trial judge abused his or her discretion. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). "The trial court has substantial discretion in making a child support award. If consistent with the law, such an 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." Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 2001) (internal citations and quotation marks omitted). We may thus reverse a trial court's decision when it "is 'made without a rational explanation, inexplicably depart[s] from established policies, or rest[s] on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). Moreover, we are not bound by "[a] trial court's interpretation of the law" and do not defer to legal consequences drawn from established facts. Manalapan Realty, L.P., v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Generally, child support awards are computed pursuant to the Child Support Guidelines. R. 5:6A (noting that the Guidelines "shall be applied when an application to establish or modify child support is considered by the court"). However, these Guidelines are generally intended to apply to minor children. Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2597 (2014). Appendix IX-A to Rule 5:6A makes it clear that the support schedule provided by the Guidelines "shall not be used to determine parental contributions for college or other post-secondary education (hereafter college) expenses nor the amount of support for a child attending college." Ibid. However, the Guidelines "may be applied in the court's discretion to support for students over [eighteen] years of age who commute to college." Ibid. By contrast, "[w]hen determining whether continued financial support for children attending college and/or parental contributions to college education are appropriate, the court shall consider relevant case law and statutes." Id. at 2598.
We have previously held that child support calculations for unemancipated college students who live on-campus, or away from the custodial parent's home, should instead be made "in light of all the financial circumstances of the parties and children." Raynor v. Raynor, 319 N.J. Super. 591, 614 (App. Div. 1999); see also Jacoby v. Jacoby, 427 N.J. Super. 109, 120-21 (App. Div. 2012). We have noted that "[a]nalyzing a student's needs and abilities, along with applicable parental financial flexibility or constraints, allows a court to assess all facets of the child support picture." Jacoby, supra, 427 N.J. Super. at 120.
"Child support and contribution to college expenses are two discrete yet related obligations imposed on parents." Hudson v. Hudson, 315 N.J. Super. 577, 584 (App. Div. 1998). "[T]ypical expenses associated with college attendance include tuition, registration fees, lab costs, housing, board, books, and computer costs." Jacoby, supra, 427 N.J. Super. at 121. Thus, "[a]lthough the child support needs [lessen] in certain areas such as room and board, which falls within college costs, arguably other necessary expenses may increase when a child goes to college." Ibid.; see also Dunne v. Dunne, 209 N.J. Super. 559, 570 (App. Div. 1986) ("Common sense dictates that a college student requires more for support than a student in high school.").
This does not mean, however, that child support costs are completely subsumed by payments for college expenses. The custodial parent may need to maintain a home for the child during school breaks. Hudson, supra, 315 N.J. Super. at 585. Moreover,
some child support expenses remain even when a child heads to college, including: transportation (possible automobile maintenance or payments, gasoline, parking, or alternate travel expenses); furniture (such as lamps, shelves, or dorm set-up and small appliances); clothing; linens and bedding; luggage; haircuts; telephone; supplies (like paper, pens, markers or calculators); sundries (such as cleaning supplies, laundry detergent); toiletries (soap, shampoo and other personal hygiene necessaries); insurance (automobile, health and personal property); entertainment for college events and organizations; and spending money.As we noted in Jacoby, supra, "[w]hile some of these expenses are the type considered within the Guidelines, many are not, further demonstrating the inapplicability of a Guidelines support award and the need for a trial judge to review the child's needs." Id. at 122. Additionally, the trial court must consider what portion of these expenses the child herself must pay, whether through loans, wages from a part-time job or other means. Ibid. Essentially, rather than calculate child support under the Guidelines, the trial court must instead set an award by applying the facts of the case to the factors in N.J.S.A. 2A:34-23(a).
[Jacoby, supra, 427 N.J. Super. at 121.]
Finally, because of the principles articulated above, "[i]n the unusual circumstance where it is determined support for a college student living away from home should be calculated with reference to the Guidelines, the judge must specifically recite all findings underpinning such a conclusion." Jacoby, supra, 427 N.J. Super. at 120.
Here the trial court explicitly used the child support guidelines worksheet to calculate the support obligation. This was incorrect. Defendant's daughter was a full-time student at Rutgers University during part of the period covered by the order. Additionally, she resided on campus, and not with plaintiff while she attended school; thus, part of her college expenses included room and board during the academic year. So, Gabriella's support should not have been calculated under the Guidelines, as she was an unemancipated college student living away from home. Moreover, under the order and the provision of the PSA, defendant was required to pay fifty percent of college expenses, including this room and board. Thus, by using the automatic calculation on the Guidelines spreadsheet to set the support award, the trial court allowed for the kind of double-dipping that we have specifically disallowed.
Nor did the trial court consider the extra expenses outlined in Jacoby, supra, 427 N.J. Super. at 121. Neither party presented evidence about Gabriella's transportation, telephone, college activity or other necessary costs, nor did they address her need for spending money. Further, the trial court did not consider what amount plaintiff should be given to cover Gabriella's living expenses during college breaks, when she would return to plaintiff's home. And, importantly, by calculating the amount using the Guidelines, the trial court did not consider what amount, if any, Gabriella could or should contribute to her own support. These elements could not be captured under the automatic calculation.
Finally, the trial court did not include findings justifying the decision to use the Guidelines. Although the trial court noted that the calculation incorporated the increased amount defendant was paying in child support for his son, and that plaintiff had been imputed income even though she was currently unemployed, it did not provide an explanation of why these two factors rendered using the Guidelines appropriate. Nor did the trial court identify any other supporting use of the Guidelines, let alone any facts establishing the "unusual circumstance" required to employ the automatic calculation in this case. Thus, the trial court abused its discretion in using the Guidelines to calculate child support for an unemancipated college student no longer living at home, without providing a justification for their use. On remand, the trial court should instead analyze the support claim under N.J.S.A. 2A:34-23(a), or, alternatively, articulate facts establishing the "unusual circumstance" that justifies the use of the Guidelines in this case.
Reversed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION