MADDALENA FINCH v. DAVID E. FINCH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1154-04T31154-04T3

MADDALENA FINCH,

Plaintiff-Respondent,

v.

DAVID E. FINCH,

Defendant-Appellant.

_________________________________

 

Submitted: March 14, 2006 - Decided April 4, 2006

Before Judges Axelrad and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Hunterdon County, FM-21274-01.

David E. Finch, appellant pro se.

James C. Jensen, attorney for respondent.

PER CURIAM

In this post-judgment matrimonial action, defendant David Finch appeals the September 24, 2004 order directing him to pay 70% of his oldest son's college expenses and other incidental costs. He asserts the following arguments on appeal:

POINT I

A TRIAL COURT'S DECISION REQUIRES REVERSAL WHEN IT IS UNSUPPORTED BY THE RELEVANT AND CREDIBLE EVIDENCE.

POINT II

BECAUSE OF THE LACK OF COMMUNICATION WITH THE DEFENDANT ABOUT [HIS SON'S] ALLEGED COLLEGE PLANS AND BECAUSE [HIS SON] HAS CHOSEN TO SEVER ALL RELATIONS WITH HIS FATHER, THE DEFENDANT SHOULD NOT BE FORCED TO PAY FOR [HIS SON'S] COLLEGE EDUCATION AND RELATED EXPENSES.

A. The Trial Court Misapplied Moss v. Moss In Holding That the Defendant Was Obligated To Pay [His Son's] College Expenses.

B. The Trial Court Erred By Placing Excessive Weight to the Testimony of [His Son] At the In Camera Hearing.

POINT III

THE trial court committed reversible error by providing only one day notice of the in camera interview, by not asking the questions requested by defendant, and by not placing reasons on the record for not asking the defendant's submitted questions.

POINT IV

THE TRIAL COURT ERRED BY REFUSING TO PERMIT THE DEFENDANT TO TESTIFY ABOUT CONVERSATIONS THE DEFENDANT HAD WITH HIS CHILDREN.

POINT V

THE TRIAL COURT ERRED BY HOLDING THAT [HIS SON] IS NOT AN EMANCIPATED CHILD.

POINT VI

THE TRIAL COURT'S LACK OF NOTICE AS TO THE IN CAMERA HEARING DEPRIVED THE DEFENDANT OF HIS DUE PROCESS RIGHTS UNDER THE STATE AND FEDERAL CONSTITUTIONS.

We are not persuaded by any of these arguments and affirm.

The parties were married in l985, and have three children, the oldest of whom is the subject of this appeal. His son born May 31, 1986, suffers from Asperger syndrome, a combination of ADD, a social compulsive disorder and an anxiety disorder. He is also emotionally fragile, having previously attempted suicide. When the parties separated in l998, the children resided with their mother and visited with their father. Appellant's relationship with his children, however, deteriorated throughout the divorce process, and a variety of pendente lite motions ensued. As noted in Judge O'Connor's May l5, 2003 findings following the divorce trial, at one point after May 2001, "[His son] became so agitated over the prospect of seeing his father that he threatened to jump out of the car on Route 287 if forced to see his father. [His son's] anxiety grew to the point where he had to be hospitalized for four days." The final judgment provided for joint legal custody of the children, with their mother as the primary residential parent, with gradual exposure of appellant to the children in a therapeutic setting. From September 2003 through May 2004 appellant's only contact with his son was during therapy sessions with Dr. Pasternak, which his son stopped attending when he turned eighteen.

This round of litigation was precipitated by a motion to enforce litigants rights filed by plaintiff Maddalena Violillo (formerly Finch) on June 30, 2004, as to a multitude of issues, including a renewed request for appellant to pay 71% of their son's college expenses and transportation costs to and from college. Plaintiff certified that their son would be attending Middlesex County College and living at home. She attached a copy of the invoice for the fall semester, reflecting a cost of $2786.40 due by August 5, 2004. She stated she was committed to paying her portion of the tuition, but when her attorney contacted appellant about contribution, he was not. She also requested appellant contribute towards commuting costs, noting their son was working towards getting a driver's license, but for the majority of the first semester he would not have a license and she would have to pay for transportation costs to and from school.

By order of July 30, 2004, Judge Rubin directed a plenary hearing to be scheduled on the issue of appellant's payment of child support and college expenses for the parties' son. The court further ordered appellant to pay all of his son's college expenses and transportation costs without prejudice pending the hearing. At the plenary hearing on August 31, 2004, plaintiff was represented by counsel and appellant, an attorney, appeared pro se. Appellant argued his son should be emancipated because he was eighteen years old. Although appellant conceded he was financially able to contribute towards his son's support, college and transportation expenses, he also argued under Newburgh v. Arrigo, 88 N.J. 529 (1982) and related cases, he should be absolved from any obligation to do so because plaintiff alienated his son's affection and his son gave him "no love or respect" and shut him out of his life. There was extensive discussion of the Newburgh factors and a number of documents were marked into evidence, including the court's thirty-page written decision following the divorce trial.

Following the hearing, Judge Rubin concluded it was critical to his determination that he interview the parties' son with respect to the issue of alienation. The trial judge overruled appellant's objection to an in camera interview and scheduled it for the next morning, with the plenary hearing to reconvene on September 3, 2004. The judge gave the parties the opportunity to fax over questions for the interview, noting he had not as yet formulated the questions he would ask and making it quite clear there was no guarantee he would ask any or all of the proposed questions. Appellant submitted thirty-five questions with multiple subparts. The son was sworn, and Judge Rubin's interview lasted about forty-five minutes.

Following the conclusion of the plenary hearing, Judge Rubin made the following prefatory statements:

I've had the opportunity to review the evidence in this proceeding. I've observed the witnesses. I've listened to the testimony. I've observed the demeanor of the parties. And I believe given appropriate weight to the testimony. In this particular case I heard from David Finch, the defendant [and] . . . the boy whom I requested be interviewed two days ago. And that was as a result of listening to Mr. Finch. I wanted to speak to him in camera. This tape, as I sa[id], is available if anybody wants it. I also heard today from Ms. Violillo.

Notwithstanding the young man's "significant emotional . . . [and] social problems," the trial judge found him to be "articulate," "straightforward" and "credible," with the ability to communicate well. As the court commented,

quite frankly, I found [him] to be candid. I didn't find anything in his statement[s] to indicate that he was fabricating anything. I didn't find anything from my 45 minutes with him, and I was seated next to him as [plaintiff's counsel] is seated next to [plaintiff], he was very engaging. I found him to be straightforward. . . .

The young man was anxious to tell the court "about the relationship with his father, his paternal grandparents, and Ms. Violillo." The court related that the parties' son said he had "a very good relationship with his mother" and a "good relationship with his siblings." However, he recounted a longstanding pattern of physical and emotional abuse at the hands of his father, which the court summarized as follows:

He does not have a good relationship -- he has no relationship, in fact, with Mr. Finch. He described, as I stated earlier, a pattern of physical, emotional abuse that Mr. Finch exacted upon him over a period of time. He described some beatings that he received. That he was kicked. That he was called a retard. He was called a bastard. That he was put down. That he really had no relationship to speak of and the end product of years of being miserable as a result of visits is that he just doesn't want anything to do with his father. He's indicated that he felt degraded and to the extent that things are as they are, is not any fault of Ms. Violillo, nor the fault of [the parties' son].

"[B]ased upon [his] conversation with [the parties' son], whom [he] believe[d]," the judge expressly found plaintiff "did not do anything . . . to try to destroy the relationship with his father." The judge explained:

She didn't say anything negative. She indicated that he should visit his father. But he was so miserable during all of these visits that he doesn't want to see him again. That when he visited his [paternal] grandparents, they would hide the phones. Make them unavailable. He would not be able to call his mother. That his mother was referred to as white trash. And this really had a very profound influence on him. . . .

The court then rejected appellant's position that his son was emancipated, finding he remained within the "sphere of influence" of his mother and at this point in his life he did not have the vocation, skills or emotional maturity to support himself. The court was hopeful that the special program at Middlesex County College would provide direction and skills, and would steer him towards part-time employment after an adjustment period at school.

The court also discussed at length each of the twelve Newburgh factors and ruled that appellant was obligated to pay his share of his son's college, incidental and transportation expenses. After reviewing the financial information, the court concluded that appellant's share was 70% and that his contribution towards the first semester's tuition was $975, exclusive of books and lab fees. Plaintiff was obligated to inform appellant if their son received financial aid, at which time the parties would re-evaluate their respective contributions towards his college education. The court also directed appellant to pay plaintiff $280 per month based on her $400 estimate of car expenses, commencing November l, conditioned on his son obtaining his driver's license and a vehicle. Otherwise, the parties would re-evaluate their son's transportation costs. Child support for their son was allocated at $64.62 per week. Judge Rubin's oral decision was memorialized in the September 24, 2004 order which is the subject of this appeal.

The argument raised by appellant in Point IV lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we will not discuss it further other than to note that the evidentiary ruling was within the trial court's discretion.

We next address appellant's arguments relating to the in camera interview. Prior to the interview, appellant did not object to its timing or claim he had insufficient opportunity to prepare questions for the court's consideration. Rather, although not clearly articulated, appellant appeared to generally object to the judge speaking with his son because he felt plaintiff had poisoned his son against him and had distorted his perception of his father's treatment of him. It appeared appellant's back-up position was that if the judge was insistent on interviewing his son, the only way to compensate for plaintiff's "coaching" was a confrontational-type process, or at least for him to be present during his son's testimony.

We discern no abuse of discretion nor error of law in connection with the entire interview process. As an attorney, appellant could have reasonably anticipated, before the plenary hearing, the possibility the judge would want to talk with his son. Regardless, after hearing appellant's version of the events of the past years and his allegation of blame for the breakdown in his relationship with his son, it became imperative the court speak with the parties' son in order to properly assess the Newburgh factors and determine the equities of appellant's college education obligation. As the judge explained, he needed the young man's perspective because it was "part of the whole picture." In view of the young man's emotional and social problems, and under the circumstances of this case, we perceive no reason to second guess the trial judge's decision to conduct an in camera interview rather than subject him to a direct confrontation by his father.

As this was not a custody hearing, the court was not required to comply with Rule 5:8-6. Nevertheless, Judge Rubin requested input from the parties but made it clear from the outset he was limiting the scope of the interview and made no guarantee he would ask any of the parties' questions. Thus, appellant had neither a vested right nor a reasonable expectation that his son would be subjected to the barrage of questions he proposed. Even so, based on our review of the transcript of the interview, it appears the judge addressed seventeen, not five, of appellant's questions, though he rephrased them in less redundant and argumentative terms. We are satisfied the judge was thorough and evenhanded in his interview. We note that the majority of the questions not asked were irrelevant to the alienation issue, such as "Can you vote in elections now?" or were questions relating to alleged problems between his son and mother occurring in his childhood, which the court rephrased to general questions about their relationship.

It came as no surprise to appellant that his son was going to recount in detail the instances of physical, emotional and mental abuse which he perceived he suffered at the hands of his father and paternal grandparents, in contrast to his loving and supportive relationship with his mother. Even if his son had not testified, the issue of parental alienation was in the case from the outset, and if appellant had thought it advanced his position, he could have presented a parental alienation expert as part of his case-in-chief. He chose not to do so. Nor did appellant request additional time, following his son's testimony, to obtain such an expert, thus we infer he concluded he did not need one. We perceive no basis for his complaint on appeal.

Our scope of review of a trial court's factfinding is limited. Its findings of fact and conclusions of law are binding on appeal when supported by adequate, substantial credible evidence in the record and are overturned only if "we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). We accord due deference to the credibility findings and the "feel of the case" by the trial judge who has heard and observed the witnesses. Pascale v. Pascale, 113 N.J. 20, 33 (1988); Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969); Gallo v. Gallo, 66 N.J. Super. l, 5 (App. Div. l961). This is particularly so with Family Part judges who possess special expertise in these types of matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

We are satisfied Judge Rubin's rulings on the parties' oldest son's emancipation and appellant's college contribution were supported by substantial credible evidence in the record and in accordance with the applicable law. The record is devoid of any support for appellant's claim that the judge placed excessive weight on his son's testimony. It is clear from the transcript of the interview that, notwithstanding the young man's disabilities, he was quite capable of recounting specific details of a litany of unfortunate episodes involving his father, and expressing himself about the breakdown of their relationship. The judge, within his discretion and expertise, assessed the maturity and credibility of the eighteen year old, and gave it the weight he felt it deserved. After having heard appellant testify, the trial judge clearly had a feel for the case, and made express findings of the young man's competency and credibility, to which we defer.

In Filippone v. Lee, 304 N.J. Super. 301 (App. Div. 1997), we discussed situations when emancipation was appropriate, stating:

Emancipation of a child is reached when the fundamental dependent relationship between parent and child is concluded, the parent relinquishes the right to custody and is relieved of the burden of support, and the child is no longer entitled to support. Emancipation may occur by reason of the child's marriage, by court order, or by reaching an appropriate age, and although there is a presumption of emancipation at age eighteen, that presumption is rebuttable. In the end the issue is always fact-sensitive and the essential inquiry is whether the child has moved "beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own."

[Id. at 308 (citations omitted)].

The evidence in the present case amply supports the trial judge's determination that the parties' son was not emancipated even though he was eighteen years old. His disabilities weakened his ability to live on his own and he was clearly still under the influence of his mother. He lived at home while attending a program for students with special needs at Middlesex County College. He suffered from longstanding emotional and social disorders, which made it extremely difficult for him to interact in society, make friends and keep employment. As a result of all these factors, he remained dependent on his parents for financial as well as emotional support.

Appellant argues that his son severed all relations with him and did not inform him of his plans to attend college and therefore the trial court erred in holding him financially responsible for a portion of his son's college tuition and car expenses. He also contends the trial court misapplied Moss v. Nedas, 289 N.J. Super. 352 (App. Div. 1996). We disagree. We are satisfied the trial judge correctly articulated and analyzed the Newburgh factors, rendered specific findings as to these criteria and, for the reasons set forth in his cogent oral decision, imposed a financial obligation on appellant for a portion of his son's college and car expenses.

In Newburgh, the seminal case for evaluating higher education cost contribution requests and claims, the Court outlined relevant factors to be considered when determining whether a parent should contribute towards the cost of the child's education. 88 N.J. at 545. Those factors are as follows:

(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.

[Ibid.]

In Moss, supra, 289 N.J. Super. at 357-60, we found that a father's obligation to financially support his daughter through college was terminated because she transferred schools "without any prior notice, consultation or discussion with him." We noted the father had expressed his desire to be part of the process several times in the past and "[d]espite prior court orders and the clear requirement that [the mother] communicate with [the father] concerning [their daughter's] educational progress and plans, [he] was not consulted." Id. at 359. Under these facts, we found it was no longer fair to enforce the agreement forcing the father to pay tuition. Id. at 359-60.

In Gac v. Gac, 351 N.J. Super. 54, 64 (App. Div. 2002), we found, although a daughter had cut ties with her father as a result of his abusive behavior, her actions did "not necessarily eradicate the parental obligation to make appropriate contributions for college education." We distinguished Moss:

We do not read Moss as holding that a child's rejection of a parent's attempt to establish a mutually affectionate relationship invariably eradicates the parent's obligation to contribute to the child's college education. In this case, for example, a judge could reasonably find from the evidence that [father's] abusive conduct during the marriage so traumatized the children as to render nugatory any real possibility of a rapprochement. In that event, it would not be reasonable to penalize [his daughter] for the [father's] misconduct. Nor would it be reasonable to reward [the father] by removing his financial obligation to contribute to his daughter's college costs. There are indeed circumstances where a child's conduct may make the enforcement of the right to contribution inequitable, but here it is claimed that it was the [father] himself who was the architect of his own misfortune.

[Id. at 65].

All of these cases were discussed by the trial judge. He made the following findings under Newburgh, all of which were amply supported by the credible evidence in the record:

(1) appellant would have paid for college had he not left the family; (2) his son's desire to attend college was not unreasonable as both his parents had received higher education; (3) the cost of community college was comparatively low; (4) both parents had the ability to pay; (5) his son was requesting a small amount of money to attend a specific program which dealt with special needs students such as himself; (6) the financial resources of the parents were never really an issue in this case; (7) although his son received poor SAT scores, he seemed to be a bright intelligent boy who had simply been suffering emotional problems; (8) the parents were directed to supply more information about his son's bonds to determine if they were available for educational expenses; (9) the court would not force him to find a job immediately as he needed time and help to find a position he could handle; (10) aside from small loans already applied for, at this point he should not be forced to borrow large sums until he is able to begin earning some money; (11) appellant and his son had no relationship but neither his son nor mother were to blame; and (12) his son seemed unable at present to hold on to a job for any long period of time because of his emotional problems and sending him to the special program at Middlesex County College was an attempt to get him the help he needs to succeed in the future.

Relevant to this appeal, the court also specifically found that unlike in Moss, appellant's former wife had not completely excluded him from knowing about his son's prospective college plans. The record amply supported the finding that appellant not only knew of his son's plans but was invited to participate in the planning process as well. His son testified that he attempted to speak with appellant about college on a few occasions around January 2004, but his father showed no interest in the topic at the time. By letter of January 16, 2004, plaintiff informed appellant that their son had applied to Fairleigh Dickinson University, and by letter of March 17, 2004, she informed him that he had been rejected and was pursuing entrance into Middlesex County College. Appellant, to his credit, as noted by the court, contacted both schools to inquire about the programs his son was interested in.

There is no question that appellant and his oldest son no longer share a relationship. The judge recognized it was an unfortunate situation but also found, and the record supports such a finding, that neither his son nor mother was responsible for the deterioration of the relationship. In many ways this case is similar to Gac, where the father's abusive behavior led to the child's desire to no longer have contact with him, a decision which we ruled did not alone warrant an end to financial support of that child. Moreover, as the trial judge mentioned on several occasions, the loss of affection is not dispositive under Newburgh. It is merely one factor to consider in determining a parent's contribution for education. Appellant's financial obligation is clearly justified under the totality of the circumstances, particularly in view of his son's disabilities, appellant's earnings and the modest cost of his son's education.

 
Affirmed.

In the interest of the privacy of the son, who is not a party to this proceeding, we have deleted all reference in this opinion to his name.

This relief, which was part of a motion filed by plaintiff in February 2004, was denied without prejudice by order of May 28, 2004, as the parties' son had not as yet been accepted into college.

This is a paraphrase of the court's findings.

(continued)

(continued)

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A-1154-04T3

April 4, 2006