Opinion
DOCKET NO. A-0336-13T3
02-11-2015
CHERYL WHITE n/k/a SIARA, Plaintiff-Appellant, v. JOSEPH WHITE, Defendant-Respondent.
Robert B. Woods argued the cause for appellant. Robert P. Ward argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-70211-89W. Robert B. Woods argued the cause for appellant. Robert P. Ward argued the cause for respondent. PER CURIAM
This appeal stems from plaintiff Cheryl White's attempt to compel her ex-husband, defendant Joseph White, to reimburse her and their youngest son for loans plaintiff and their son used to pay for his college education. The Family Part judge who heard her motion denied it, primarily because plaintiff did not file it until after their son had graduated from college. Plaintiff argues that the judge erred by doing so. Having considered plaintiff's argument in light of the record and controlling law, we conclude that the judge's decision was not manifestly unreasonable, arbitrary, clearly contrary to reason, or the result of whim or caprice. Accordingly, we affirm.
The Family Part judge decided plaintiff's motion as well as defendant's cross-motion based on their moving, opposing, and reply certifications, which establish the following facts. Following a six-year marriage and the birth of their two children, the parties were divorced by a judgment (JOD) that granted custody of the children to plaintiff, established defendant's child support obligation, and incorporated the parties agreement concerning the equitable distribution of marital property. During the years between December 1989 when the JOD was filed and January 2011 when the court denied defendant's first motion to emancipate their youngest son, the parties' filed motions that mostly involved or resulted in upward or downward adjustments to defendant's support obligations, though one motion involved plaintiff's attempt to compel defendant to contribute to the college expenses of their older child, who is now emancipated and who is not the subject of this appeal.
Defendant had no contact with either of the children after 1998. The parties dispute why that is so, defendant suggesting that plaintiff alienated the children's affections, plaintiff claiming defendant essentially abandoned them. In any event, their youngest child started college ten years later and attended from September 3, 2008 through December 13, 2011, when he graduated with a Bachelor of Science degree. There is no evidence that defendant had any knowledge that the youngest child was attending college before January 2011, when the court denied defendant's motion to emancipate him. The court denied defendant's motion because the child was attending college full-time. The court also denied as moot defendant's application to compel plaintiff to provide proof that their youngest son was attending college, plaintiff having provided such proof in her opposing papers. Plaintiff did not file a cross-motion at that time seeking to compel defendant to contribute to their youngest son's college expenses.
Later in 2011, defendant again attempted to have the court declare their youngest child emancipated and the court again denied the motion. Nothing in the confirming order the court entered on August 12, 2011 suggests that plaintiff had cross-moved to compel defendant to pay for some of their son's expenses.
On September 13, 2012 — nine months after defendant's youngest son graduated from college — plaintiff filed a motion seeking a retroactive increase in child support effective May 2009 through December 2011, and an order directing defendant to pay for the non-emancipated child's college education as well as a loan that plaintiff had used for that purpose. The court denied the motion in October 2012 primarily because plaintiff had not attached the previous support orders. Plaintiff refiled the motion in June 2013 and attached the orders. The court denied the motion. The confirming order is the subject of this appeal.
In the certification plaintiff submitted with her motion, she explained that she was making the application because defendant, a veteran, had become permanently disabled on May 1, 2009. Plaintiff learned through the United States Department of Veterans Affairs that their youngest son, as the child of a disabled veteran, would have been eligible to receive from the Veterans Administration (VA) benefits that would have paid for his entire college tuition. After discovering the availability of the VA benefits, their son applied for the benefits but, according to plaintiff's proofs, received them for only seven months; had he applied when they first became available, he would have received benefits for forty-five months and could have used them during his first years of college. Asserting that defendant deliberately refrained from telling their son about the benefits, plaintiff sought to have defendant repay a loan their son had used to partially fund his college education as well as a loan she had used for the same purpose.
In addition, plaintiff asked the court to recalculate child support from 2009 through 2011, taking into account defendant's income from his disability benefits and all other sources. Plaintiff also requested the court to compel defendant to provide her with all documentary evidence of all sources of his income.
Defendant filed a cross-motion seeking denial of plaintiff's motion, an order compelling plaintiff to disclose how she obtained information about defendant from the VA, and an order compelling her to disclose the contents of her communications with the VA.
The court denied plaintiff's motion and granted defendant's cross-motion. Although sympathetic to plaintiff's plight, the court explained that it was required by the Supreme Court's decision in Gac v. Gac, 186 N.J. 535, 546 (2006), to consider whether defendant had been involved in the college selection process. Additionally, the court noted that defendant was disabled and questioned whether, under the circumstances, it was fair to retrospectively place the burden on him to ascertain whether his children were entitled to VA benefits. The court further explained that it would have had to consider all revenue sources available to all parties when the child applied to college before evaluating the factors enumerated by the Supreme Court in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), and deciding how to allocate college expenses among the parties and their son.
Relying on Newburgh and Gac, the court ruled that waiting until after the parties' son graduated from college was fatal to plaintiff's application. Specifically, the court explained that the basis of its decision "was that there had not been a previous allocation as to expenses. Any kind of issue of that sort needs to be worked out and an order put in place." Plaintiff appealed from the implementing order. We turn to her arguments on appeal.
Plaintiff argues that "the court improperly evaluated the Newbugh and Gac standard in determining [her] motion." She also contends the court wrongly decided that since the children did not have a relationship with the father he should not be compelled to contribute to the cost of the education.
In Newburgh, supra, 88 N.J. at 545, our Supreme Court identified twelve non-exhaustive factors a court should consider when deciding a motion by one parent for contribution from the other parent toward the cost of a child's higher education. The factors are:
(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.
In addition, N.J.S.A. 2A:34-23(a) requires that the court consider the following:
(1) Needs of the child;
(2) Standard of living and economic circumstances of each parent;
(3) All sources of income and assets of each parent;
(4) Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;
(5) Need and capacity of the child for education, including higher education;
(6) Age and health of the child and each parent;
(7) Income, assets and earning ability of the child;
(8) Responsibility of the parents for the court-ordered support of others;
(9) Reasonable debts and liabilities of each child and parent; and
(10) Any other factors the court may deem relevant.
Courts "should balance the statutory criteria of N.J.S.A. 2A:34-23(a) and the Newburgh factors, as well as any other relevant circumstances, to reach a fair and just decision whether and, if so, in what amount, a parent or parents must contribute to a child's educational expenses." Gac, supra, 186 N.J. at 543. "A relationship between a non-custodial parent and a child is not required for the custodial parent or the child to ask the noncustodial parent for financial assistance to defray college expenses." Id. at 546. Nonetheless,
the factors set forth 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.]
When addressing the issue of a parent's contribution toward a child's college education, a "trial court has substantial discretion." Gotlib v. Gotlib, 399 N.J. Super. 295, 308 (App. Div. 2008) (citing Foust v. Glaser, 340 N.J. Super. 312, 315 (App. Div. 2001)). "Therefore, if the award is 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." Ibid. (quoting Foust, supra, 340 N.J. Super. at 315-16) (internal quotation marks omitted). Here, the trial court's denial of plaintiff's motion was not manifestly unreasonable, arbitrary, or clearly contrary to reason, or the result of whim or caprice.
Contrary to plaintiff's assertion, the trial court did not decide that defendant was absolved of contributing toward college expenses because he had no relationship with their son; rather, the court held that because plaintiff had not complied with Gac by making her motion before the expenses were incurred, the court had no record or competent evidence before it on which to apply the Newburgh factors, which should have been applied before the child started college and began incurring expenses. That ruling was correct: "the factors set forth 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." Gac, supra, 186 N.J. at 546.
In any event, the Newburgh and statutory factors concerning parental contributions to a child's education are not necessarily controlling here. The issue, more precisely, is whether a non-custodial parent can be held liable to a child for the amount of educational benefits that would have been available from a non-parental source had the parent timely notified the child or the child's custodial parent. Plaintiff has cited no authority to support the imposition of such liability, and for several reasons, we are not prepared to impose it on this record.
First, it is not clear exactly when defendant first learned that his son was attending college or when defendant became aware that the VA benefits were available. Second, the precise reason for defendant's alienation from his son is both unclear and disputed. The absence of a relationship appears to have been a factor in the son not knowing his father had become disabled and was receiving benefits, but who was at fault cannot be resolved on this record. Third, we are unable to assess on this record the fairness of compelling a disabled veteran to pay out of pocket towards college education expenses of a child with whom he has had no communication for what is now more than twenty years.
Plaintiff has also failed to address N.J.S.A. 2A:17-56.23A, which prohibits retroactive modification of child support.
For the foregoing reasons, we affirm the trial court's decision and order.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION