Opinion
DOCKET NO. A-1822-14T3
04-27-2016
DEAN MARCANTONIO, Plaintiff-Appellant, v. CHRISTINE MARCANTONIO, Defendant-Respondent.
Pashman Stein, P.C., attorneys for appellant (Robert B. Kornitzer, of counsel and on the briefs; Kristi L. Terranova, on the briefs). Andril & Espinosa, LLC, attorneys for respondent (Antonio R. Espinosa, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Ostrer. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1053-98. Pashman Stein, P.C., attorneys for appellant (Robert B. Kornitzer, of counsel and on the briefs; Kristi L. Terranova, on the briefs). Andril & Espinosa, LLC, attorneys for respondent (Antonio R. Espinosa, on the brief). PER CURIAM
In this post-judgment matrimonial matter, plaintiff Dean Marcantonio appeals from the trial court's order increasing his obligation to pay his daughter's and son's living expenses while at college. As the court did not give effect to the parties' agreement regarding college expenses, or apply the factors governing calculation of child support, we reverse and remand for further proceedings.
I.
We discern the following facts from the record. The parties divorced in March 2000 after seven-and-a-half years of marriage. According to the property settlement agreement (PSA) incorporated into the final judgment of divorce (FJD), defendant became the primary residential parent of their daughter Abby and son Andrew, who were born in 1994 and 1996. Plaintiff agreed to pay $250 a week in child support.
We use pseudonyms for the children.
The parties also agreed to share responsibility for the children's college expenses. The PSA states, "[plaintiff] will pay college tuition and board, exclusive of books and fees and incidental costs, which shall be the responsibility of [defendant]." "Incidental costs" are not defined. Although the PSA does not mention "room" costs, plaintiff acknowledges he is also responsible for that expense for both children. The PSA states each child's "school must be agreed upon by both parties."
Abby entered a public out-of-state university in the fall of 2012. Prior to that, the parties engaged in the first of three rounds of motion practice regarding the allocation of college-related costs. A July 2012 Family Part order set plaintiff's contribution at an amount equal to "the cost of tuition and the cost of room and board" at Rutgers University, after deducting $2750 "as a credit for one-half of [Abby's] federal loans . . . ." In September 2013, the court entered a second order that added university fees to plaintiff's obligation. Incongruously, the second order stated plaintiff "shall continue to pay" the "Livingston College Rutgers University rate[] of tuition, fees, room, and board . . . ." (Emphasis added). The order required Abby to apply for and accept "all loans, grants, scholarships, and financial aid" without stating whether those would affect plaintiff's obligation.
Three months later, the court entered an order that required plaintiff to pay tuition for Abby "based on tuition rates at Rutgers School of Environmental and Biological Sciences minus all scholarship and grants, beginning in the Fall 2014" and to "contribute to the meal plan based on the Rutgers University 210 meal plan." The order stated that beginning in fall 2014, "[p]laintiff shall no longer get credit for any loans taken out by" Abby, and "[d]efendant shall no longer get credit for scholarships and grants received by" Abby. The order does not mention Abby's "room" cost. The record does not include a statement of reasons accompanying these three orders.
Andrew began studies at a different out-of-state public university in the fall of 2014. In advance of Andrew's matriculation, plaintiff filed a motion to reduce his child support, which by that time had increased to $309. The record does not disclose the basis for the entire increase, but the most recent increase was a cost of living adjustment. On September 19, 2014, the court granted the motion to modify child support but declined to set a new amount, pending submission of current case information statements and a "Jacoby Factor worksheet."
Defendant filed a cross-motion contending that plaintiff should not receive a credit for the grants or scholarships each child received. The court advised the parties it would not consider the cross-motion because it was filed late and must be filed as a separate motion.
The worksheet is a form apparently prepared by the court, which lists various college costs and contributions thereto by the child and each parent; the income, assets, debts, and current child support of each parent; and the child's monthly expenses. See Jacoby v. Jacoby, 427 N.J. Super. 109, 121-23 (App. Div. 2012).
In October 2014, following the requested submissions, the court heard argument and entered the order from which plaintiff appeals. The court reduced child support by thirty percent to $216 a week, "as a result of the children being in college, and away from [home], in accordance with the Jacoby factors." The court did not expressly apply the factors enumerated in N.J.S.A. 2A:34-23 or Jacoby, supra, 427 N.J. Super. at 121-22.
Plaintiff's notice of appeal states he appeals from a subsequent order entered a week later, although that order was essentially a supplement to the October oral decision.
However, the court substantially increased plaintiff's obligation for the children's living expenses at college. The court accepted defendant's assertion that Abby, who lived off-campus, incurred $1375 a month in living expenses, not including gasoline and auto insurance. This amount was comprised of $550 in rent and utilities; $300 for food; $100 each for phone, toiletries, supplies, and spending money; $50 each for entertainment and clothing; and $25 for bedding. The court also accepted defendant's assertion that Andrew had monthly expenses of $700, excluding gasoline and auto insurance. He had largely the same expenses as Abby, except his did not include rent; Andrew also had $200 instead of $300 for food, although he was apparently on a meal plan. Abby's $1375 and Andrew's $700 added up to $2075 in monthly expenses.
In its oral decision, the court noted defendant would now receive $929 a month (4.3 x $216) in child support, as a result of plaintiff's decreased obligation. The court assumed that defendant paid all $2075 of the children's monthly expenses, and that the child support payment she received from plaintiff was the only money available to defendant to pay these expenses. The court explained, "since the child support has been reduced, the only monies available to the defendant is $929." Thus the court found that the $1146 difference between the $2075 and $929 was "not covered."
The court then held, without explanation, that the $1146 in living expenses are not "incidental expenses" but are "a part of tuition, fees, and college expenses that are to be covered by the plaintiff, 100 percent." The court stated on the record that "1,000 is considered college expenses, which are the responsibility of the plaintiff." In its formal order, the court classified the $1146 in living expenses as "college housing expenses, which is considered 'board' pursuant to" the PSA. Plaintiff was to pay that amount directly to defendant every month. The court's order did not otherwise modify plaintiff's contribution for Abby's tuition or room and board.
On appeal, plaintiff argues the court abused its discretion in increasing his obligation for college expenses by classifying all of the living expenses as "board" under the PSA. Plaintiff contends that, in doing so, the court double-counted certain expenses that are already covered by room and board, which he was already paying (at the Rutgers rate, minus grants and scholarships). He argues that some of the $2075 in living expenses are properly characterized as "incidental expenses," for which defendant is responsible under the PSA. Plaintiff also argues the court failed to apply the statutory and Jacoby factors governing child support modification. Defendant argues the court did not abuse its discretion, as it appropriately applied the factors and correctly deemed the living expenses to be "board" expenses.
II.
We defer to a family court's factfinding because of its "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). However, our review of legal determinations is plenary. Bisbing v. Bisbing, ___ N.J. Super. ___, ___ (App. Div. 2016) (slip op. at 6). We review a decision to modify child support for an abuse of discretion. J.B. v. W.B., 215 N.J. 305, 325-26 (2013). An abuse of discretion occurs when a decision "is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Jacoby, supra, 427 N.J. Super. at 116 (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002). We are compelled to reverse and remand "if the court ignores applicable standards." Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008).
The court must also make findings of fact and state its reasoning. R. 1:7-4. "[A]n articulation of reasons is essential to the fair resolution of a case." O'Brien v. O'Brien, 259 N.J. Super. 402, 407 (App. Div. 1992). "A mere recitation of factors considered is not sufficient." Monte v. Monte, 212 N.J. Super. 557, 565 (App. Div. 1986).
Beginning with the decrease in support from $309 to $216, we note initially that the children's attendance at out-of-state colleges is a change in circumstances warranting review of child support. Jacoby, supra, 427 N.J. Super. at 113. In recalculating the level of support, however, the court was required to apply the factors enumerated in N.J.S.A. 2A:34-23(a), which governs support obligations for college students living away from home. Those factors include any assets and sources of income for the parents, as well as sources of income for the child. Ibid.
Although plaintiff contends the court was required to apply the other-dependent deduction in calculating child support, this deduction is made under the Child Support Guidelines, Schwarz v. Schwarz, 328 N.J. Super. 275, 283-84 (App. Div. 2000), which do not apply to support obligations for college students over the age of eighteen. Jacoby, supra, 427 N.J. Super. at 119-20. Nonetheless, the court may consider plaintiff's obligation to support the child of his new marriage. See N.J.S.A. 2A:34-23(a)(10).
The court was also required to consider factors directly related to college attendance. Jacoby, supra, 427 N.J. Super. at 122. We observed in Jacoby that certain living expenses may decrease for a child away at college — for example, room and board, which is covered by college costs — although a parent may need to maintain a room in New Jersey for breaks and vacation. Id. at 121-22. Other expenses, such as clothing, transportation, and phone, may remain the same. Ibid. And yet other expenses may increase. Ibid.
The court simply did not engage in the required analysis in reducing child support from $309 to $216. Its calculation lacked support on several levels. The court did not evaluate the children's needs or whether they earned any income. Nor did it evaluate whether expenses such as clothing, toiletries and phone changed during college. The court did not consider other factors, such as the children's need to maintain a local residence during breaks, ibid., or the parents' incomes. N.J.S.A. 2A:34-23(a). Further, the court did not scrutinize the living expenses alleged by defendant to determine whether they were reasonable, or for that matter were even incurred. For example, the court did not consider whether it is reasonable for Andrew to spend $200 a month on food on top of a meal plan, in addition to the $150 for discretionary "spending money" and "entertainment." The documentation of Abby's spending similarly reflects frequent meals at restaurants.
Rather than address the factors, the court performed an unsupported arithmetic calculation to derive the child support obligation. The court provided no justification for beginning with the $309 number, instead of calculating the support level anew. The record provides no basis for the original child support calculation in the PSA, which apparently was inflated over time to $309. No guidelines were attached to the FJD, cf. R. 5:6A, and plaintiff did not submit the case information statement that accompanied the FJD, see R. 5:5-4(a). Nor did the court explain why a thirty percent reduction was appropriate.
We also discern inadequate support for the court's characterization of all the monthly living expenses as tuition, room and board. Typically, "room" is the cost of housing and "board" is the cost of a meal plan. See Madeline Marzano-Lesnevich & Scott Adam Laterra, "Child Support and College: What is the Correct Result?" 22 J. Am. Acad. Matrimonial Law 335, 336 n.2 (2009) ("Board" is the cost of "a full (seven days/week) meal plan."). Under no reasonable reading could expenses for clothing, phone, toiletries, supplies, entertainment, or even personal bedding be considered "room and board." It was error to deem these as "board" under the PSA, which is plaintiff's sole responsibility. Indeed, several of these expenses are more fairly characterized as "incidental costs," which the PSA requires defendant to pay. It was incumbent upon the court to interpret "incidental costs" and, if it determined the term was ambiguous, the court should have required certifications from the parties to ascertain their intended meaning of the term. If necessary, the court should have conducted an evidentiary hearing.
We also agree with plaintiff that the court's interpretation of "board" double-counted some of Abby's living expenses. The court included Abby's rent, utilities and food expenses as "board," even though plaintiff's contribution to her college costs already included room and board expenses. As we stated in Jacoby, child support cannot be computed in a vacuum, ignoring the parties' respective payments for college itself. 427 N.J. Super. at 121-22; see also Hudson v. Hudson, 315 N.J. Super. 577, 584-85 (App. Div. 1998). In calculating the level of support, the court must take into account payments the parties make for the children's college expenses.
The calculation of plaintiff's financial contribution was deficient in other respects. Plaintiff agreed he would pay tuition, room and board for a college upon which the parties agreed. He is bound to fulfill that commitment, as our courts "favor[] the use of consensual agreements to resolve marital controversies." J.B., supra, 215 N.J. at 326 (internal quotation marks and citation omitted). Although the court repeatedly ordered plaintiff to pay no more than the equivalent amounts charged by Rutgers University, the record does not disclose the basis for doing so. We have specifically disapproved of this so-called "Rutgers Rule," which limits a parent's contribution to the cost of a New Jersey university, without regard to other factors such as ability to pay. See Finger v. Zenn, 335 N.J. Super. 438, 443-45 (App. Div. 2000).
Furthermore, the court did not explain why plaintiff's obligation should be reduced by the amount Abby received in grants and scholarships, when the net charges to Abby still exceeded the "Rutgers rate." The PSA does not mention or authorize such reductions in those circumstances. There is no evidence that the children would have received the same amounts in grants and scholarships had they attended Rutgers. Finally, we note the record does not contain an order specifying plaintiff's contribution toward Andrew's tuition, room and board. Andrew's matriculation constitutes a changed circumstance warranting review of both parents' total obligation, in part because of the increased burden on both of them. Jacoby, supra, 427 N.J. Super. at 113.
On the other hand, it appears that defendant understated plaintiff's share of the children's actual college costs by including in her calculation over $10,000 in "fees." We find no evidential support for this figure. The few relevant documents in the record from the children's universities list fees that are a fraction of defendant's figure. --------
In sum, the parties' PSA left many questions open about each parent's responsibility for college costs and is silent on the impact of college attendance on child support. In modifying child support, the court should apply the statutory and Jacoby factors, after making appropriate findings of fact, taking into account the parties' contributions toward college costs. In resolving the interpretive issues created by the PSA, the court must articulate the reasons for its decision. We express no opinion regarding the ultimate result of the court's recalculation of support.
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