Opinion
DOCKET NO. A-3628-12T2
03-17-2014
JEFFREY CAMPBELL, Plaintiff-Appellant, v. MONICA CAMPBELL, Defendant-Respondent.
Robert A. Abrams, P.A., attorneys for appellant (Robert A. Abrams, of counsel and on the briefs). Patricia A. Bennett, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Fasciale and Haas.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1477-00.
Robert A. Abrams, P.A., attorneys for appellant (Robert A. Abrams, of counsel and on the briefs).
Patricia A. Bennett, attorney for respondent. PER CURIAM
In this post-divorce matrimonial action, plaintiff appeals from a February 26, 2013 order modifying his child support and establishing his college contribution obligations. We reverse, remand, and direct the judge to conduct further proceedings consistent with this opinion
The parties were married in 1990 and had two daughters. In 2001, the parties obtained a judgment of divorce (JOD) when the children were six and nine years old. As part of the JOD, the parties reached a property settlement agreement, which provided in part that
The parties' children were born in 1991 and 1994.
[i]t is specifically understood and agreed by and between the [h]usband and the [w]ife that both [p]arties have an obligation to provide for any and all costs relating to the college education of the [c]hildren based on their respective income and ability to pay solely between [h]usband and [w]ife at the time each [c]hild attains the appropriate age or intellectual level permitting same.Plaintiff had no contact with the children for approximately thirteen years before defendant requested college contribution.
In June 2012, plaintiff filed a motion to modify child support, schedule a plenary hearing, terminate his obligation to pay for his children's college education, and compel defendant to produce financial discovery and a complete case information statement (CIS). Defendant cross-moved seeking contribution for college tuition and related expenses. This was defendant's first request that plaintiff pay for college expenses.
In July 2012, the judge issued a tentative decision, which the parties accepted, indicating that he would reduce plaintiff's child support obligations and allocate the parties' college contribution obligations upon receipt of court-ordered discovery. On July 13, 2012, the judge ordered defendant to produce the CIS and financial discovery. After the judge received the discovery, the judge issued the order under review (1) reducing plaintiff's weekly child support from $325 to $118.23; (2) allocating to plaintiff sixty-two percent of the college costs for the parties' two children; and (3) requiring plaintiff to pay $14,502.14 in arrears, payable at the rate of $1000 per month. Although the judge issued a two-page statement of reasons, he did so without the benefit of oral argument or a plenary hearing.
On appeal, plaintiff argues that the judge failed to conduct a plenary hearing and perform a Newburgh analysis to determine the parties' college contribution obligations. We agree.
Newburgh v. Arrigo, 88 N.J. 529 (1982).
--------
We are required to accord deference to the Family Court's fact-finding because of the court's special expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). However, we may exercise a more extensive review of trial court findings that do not involve a testimonial hearing or assessments of witness credibility. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (stating that deference to Family Court conclusions is not required where "no hearing takes place, no evidence is admitted, and no findings of fact are made"). We may vacate an award if the "trial court clearly abused its discretion or failed to consider all of the controlling legal principles, or . . . the findings were mistaken or . . . the determination could not reasonably have been reached on sufficient[,] credible evidence present in the record." Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009). If the "court ignores applicable standards, we are compelled to reverse and remand for further proceedings." Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008) (reversing and remanding for a new determination of allocation of college expenses where the Family Court failed to consider all the required factors). We owe no special deference to the trial judge's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
In Newburgh, supra, 88 N.J. at 545, the Court provided a framework for evaluating parental contribution towards a child's post-secondary education. Courts are instructed to "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.The judge "has 'an obligation under Newburgh and N.J.S.A. 2A:34-23(a) to consider all the enumerated factors.'" Gotlib, supra, 399 N.J. Super. at 309. (quoting Raynor v. Raynor, 319 N.J. Super. 591, 617 (App. Div. 1999)). The judge did not satisfy this obligation here.
[Ibid.]
It is well-established that a child over age eighteen enrolled in a full-time educational program requires continued support. See Gac v. Gac, 186 N.J. 535, 542 (2006) (indicating that "[t]he Legislature and our courts have long recognized a child's need for higher education and that this need is a proper consideration in determining a parent's child support obligation"). The Supreme Court stated, however, that the factors in Newburgh 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.]
Here, defendant requested plaintiff's tuition assistance for the first time when the children's college expenses had been incurred. We are mindful that a relationship is "not required for the custodial parent or the child to ask the non-custodial parent for financial assistance to defray college expenses." Id. at 546. Still, the absence of a relationship (Newburgh factor number eleven), along with other factors, may render inequitable a requirement that a non-custodial parent contribute to college expenses. See id. at 546-47 . On remand, the judge should consider all relevant Newburgh factors.
Finally, we reject defendant's contention that plaintiff waived oral argument or his request for a plenary hearing. On July 11, 2012, two days before the judge issued his order, plaintiff's counsel wrote the judge and stated that oral argument on July 13, 2012 was unnecessary because the parties agreed with the tentative decision. Plaintiff explained in his July 2013 certification that in July 2012, he waived oral argument because he agreed with the judge that defendant should produce discovery so that the judge could address plaintiff's purported college contribution obligations.
We reverse the court's ruling concerning the parties' obligations to pay for the children's college education, remand, and direct the judge to make the requisite factual findings and conclusions of law consistent with this opinion. 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