JUDITH A. WOLFE v. ROBERT J. BALFE, SR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3979-04T53979-04T5

JUDITH A. WOLFE,

Plaintiff-Respondent.

v.

ROBERT J. BALFE, SR.,

Defendant-Appellant.

_________________________________

 

Submitted October 31, 2005 - Decided November 18, 2005

Before Judges Cuff and Lintner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FM-04-17504-86.

Robert J. Balfe, Sr., appellant pro se.

Judith A. Wolfe, respondent pro se.

PER CURIAM

On February 25, 2005, a Family Part Order was issued entering judgment in the total amount of $63,376.50, in favor of plaintiff, Judith Wolfe, for tuition expenses incurred for their son's college education. The Order provided in pertinent part:

1. Judgment shall be, [and] hereby is, entered against the Defendant [and] in favor of the Plaintiff in the amount of $51,630.00, this being the arrearages due [and] owing on Defendant's Camden [County] Probation Account as of 2/25/05.

2. Judgment is also hereby entered against the Defendant, [and] in favor of the Plaintiff, in the amount of $11,746.50 this being one-half the tuition expenses incurred by the parities' son, Ryan, at the University of Delaware, since the last Order entered in this matter, on November 7, 2003.

Defendant Robert Balfe appeals and we affirm.

The parties were married on May 5, 1979. Two children were born of the marriage, Ryan Albert and Robert Joseph, Jr. Judith and Robert entered into a Property Settlement Agreement (PSA), which was incorporated into an April 8, 1986, Final Judgment of Divorce. The agreement granted custody to Judith of the couple's two children, who were three and four years of age at the time. Robert was afforded visitation every other weekend, two weeks a year, and alternating holidays. The parties agreed that no alimony would be paid and Judith waived her right to child support in exchange for the deed to the marital residence. The PSA obligated Robert to pay for books, uniforms, and tuition for the children to attend Catholic school for grades one through eight and Catholic school tuition for both children for grades nine through twelve. Robert also agreed to:

[P]ay for the tuition for the two minor children to attend college, within [his] financial means. If the children choose to attend a college that is not within [Robert's] financial means, [Judith] may at her option, contribute to the costs of college tuition over and above the amount [Robert] can afford. [Judith] shall pay the costs of room, board, books and transportation for the children to attend college.

On April 8, 1997, a Family Part judge found that defendant had a significant decrease in income and ordered that his tuition obligations for Catholic high school be reduced by one-half. In the Fall of 2001, Ryan enrolled in the University of Delaware. On November 30, 2001, defendant was ordered to pay $100 every two weeks to the Probation Department as reimbursement to Judith for paying Ryan's college tuition. On March 8, 2002, an Order established Robert's arrearages at $6930 for Ryan's college tuition. The March 8 Order also suspended Robert's obligation to pay the arrearages until he found employment. A June 21, 2002, Order updated Robert's arrearages to $16,461 and on January 17, 2003, Robert was ordered to pay an additional $9124 for Ryan's college tuition. On March 14, 2003, a judgment was entered against defendant for $16,829 for the 2002-2003 academic year. On November 7, 2003, he was ordered to reimburse Judith $7710 for tuition paid by her on behalf of Ryan and pay Ryan's tuition for the second semester of his Junior year in the approximate amount of $8000. All of these orders obligated Robert to submit Case Information Statements (CIS). However, the record indicates that none was filed.

On February 18, 2005, the parties appeared before a Family Part judge, who had not presided at the previous hearings, on Judith's application to enforce Robert's obligation under the PSA and reimburse her for tuition payments totaling $23,493 for the 2004 Winter, Summer, and Fall semesters and the 2005 Winter and Spring semesters. The judge inquired why Robert had not filed any responding papers. Robert stated that he had not "been served with any papers." The judge than asked why he was there, to which Robert replied that he "received a note from the court." Judith explained that she sent Robert her papers both by certified mail and regular mail. Robert then responded that he had not been served at his post office box and that Judith's papers were sent to his long-time girlfriend's house. The judge than gave Robert five days to file response papers and ordered the parties to appear on February 25. Robert filed response papers, but failed to provide any financial information.

During his appearance on February 25, Robert maintained that he was unable to pay the tuition and that he should not be held liable since the agreement called for him to pay only what he could afford. He conceded that he had not paid the tuition previously ordered by the court. The judge reduced the arrearages to a judgment in the amount of $51,360, as reflected by the Probation Department records. He then ordered Robert to reimburse Judith one-half of Ryan's tuition expenses paid by her for the 2004-2005 semesters, all of which was evidenced by University of Delaware invoices. Robert filed his notice of appeal on April 4, 2005.

Robert essentially contends: (1) he is not obligated to pay Ryan's tuition expenses because it was his son who entered into a contract with the University of Delaware; (2) the trial judge was biased because he declared prior to the February 25, 2005, hearing that he would find for the plaintiff; (3) he should not be obligated to pay for his son's college tuition because the costs would be less if Ryan attended a New Jersey institution; (4) Judith never provided him with evidence of their son's college tuition charges prior to litigation; and (5) he is not obligated to pay the tuition because it is beyond his financial means.

We restate some general principles applicable to parental support obligations respecting higher education. Our public policy regarding education, as well as the child support component of N.J.S.A. 2A:34-23, allows courts substantial discretion in determining whether to require a non-custodial parent to pay for a child's college education expenses. Hoefers v. Jones, 288 N.J. Super. 590, 616-17 (Ch. Div. 1994), aff'd, 288 N.J. Super. 478 (App. Div. 1996). Courts possess broad equitable powers to accomplish substantial justice. Kiken v. Kiken, 149 N.J. 441, 455 (1997) (citing Weitzman v. Weitzman, 228 N.J. Super. 346, 358-59 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989)). Children of divorce have a right to financial support from their parents, at least at a level of the standard of living to which they had grown accustomed to prior to the separation. Connell v. Connell, 313 N.J. Super. 426, 430 (App. Div. 1998) (citing Lepis v. Lepis, 83 N.J. 139, 150 (1980)). "Both parents share the obligation to support their children, determined mainly by the quality of economic life during the marriage, and not mere survival." Id. (citing Pascale v. Pascale, 140 N.J. 583, 592 (1995)). An award of such support is within the discretion of the trial court and will not be disturbed unless it is "manifestly unreasonable, arbitrary or clearly contrary to reason or to the evidence, or the result of whim or caprice." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976); see Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999). Findings by the judge are considered binding on appeal when supported by adequate, substantial and credible evidence. Raynor, supra, 319 N.J. Super. at 605 (citing Rova Farms Resort v. Investors Ins. Co. of Am., 65 N.J. 474, 483-484 (1974)).

Applying these principles to the facts here, we conclude that the motion judge correctly used his discretion in ordering Robert to reimburse Judith for fifty-percent of Ryan's college tuition at the University of Delaware for the semester in question. First and foremost, the PSA obligated Robert to pay the entire tuition. Generally, when parties voluntarily enter into a fair property settlement agreement, the agreement should not be disturbed unnecessarily. Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999); Smith v. Smith, 72 N.J. 350, 358 (1977); see Petersen v. Petersen, 85 N.J. 638, 645 (1981). Property settlement agreements may be modified by the court where a party shows changed circumstances, which warrant such modification. Lepis, supra, 83 N.J. at 146; Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970). Robert was provided additional time to submit financial information to support his claim that his circumstances have changed sufficiently to warrant a modification of the prior orders. He chose not to file any financial information. We are satisfied that the judge appropriately considered Robert's arguments in ordering him to reimburse Judith one-half of the outstanding tuition expenses incurred that had not been the subject matter of the prior arrearages.

We address Robert's contention, raised for the first time on appeal, that choice of college should be limited to a college with a tuition comparable to a New Jersey institution. Generally, an appellate tribunal need not consider questions not properly presented to a trial court, unless the issue raised concerns matters of great public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Nevertheless, there is nothing in the PSA limiting Ryan's selection of college to either a New Jersey institution or to a college with a comparable tuition. See Finger v. Zenn, 335 N.J. Super. 438, 445-46 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001). Moreover, Robert has not presented any proof establishing that the tuition charged by the University of Delaware is unreasonable.

Lastly, we are satisfied, based upon our careful review of the entire record, that defendant's remaining contentions, namely, that he was not properly served with Judith's papers, the lack of a contractual relationship between him and the University of Delaware, and bias on the part of the judge are legally and factually without sufficient merit to warrant further discussion in a written opinion. Likewise, to the extent we have not expressly addressed any other arguments presented, we deem them not to require discussion. R. 2:11-3(e)(1)(A) and (E).

 
Affirmed.

A CIS dated March 11, 2002, is included in Robert's appellate appendix showing gross earnings of $54,666 per year and monthly expenses of $2210. However, the CIS is not stamped as filed with the court.

Judith does not cross appeal the order reducing Robert's obligation to reimburse her an amount equal to fifty-percent of the tuition payments made by her since the last order entered in November 2003.

(continued)

(continued)

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A-3979-04T5

November 18, 2005