FRANCES BARKEN v. JOSHUA POLLACK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1857-05T31857-05T3

FRANCES BARKEN,

(f/k/a POLLACK),

Plaintiff-Respondent,

v.

JOSHUA POLLACK,

Defendant-Appellant.

___________________________________________________________

 

Submitted September 12, 2006 - Decided October 17, 2006

Before Judges Coburn and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FM-07-15478-94.

Joshua Pollack, appellant pro se.

Frances Barken, respondent pro se.

PER CURIAM

Defendant Joshua Pollack appeals from an order of the Chancery Division, Essex County, entered on October 28, 2005, determining, among other things, that defendant is solely responsible for Nicholas' college tuition, fees, expenses and room and board. The order resolves various other issues between defendant and his ex-wife, plaintiff Frances Barken, but according to defendant's Notice of Appeal and Civil Case Information Statement, the sole issue from which defendant has appealed is Paragraph 1 of the order.

Notwithstanding the limited scope specified in defendant's Notice of Appeal, in his brief, defendant raises additional arguments. For example, he argues that the judge was incorrect in deciding that he had waived his right to seek child support for the parties' second son, Spencer, because he had not done so previously. He also asserts that the court abused its discretion in refusing to grant his request for an adjournment. As stated, the Notice of Appeal and Civil Case Information Statement are quite specific. They both identify Paragraph 1 as the only portion of the order from which defendant is appealing. Accordingly, we shall limit our review to that portion of the October 28 order. See R. 2:5-1(f)(3)(i). See also Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544 (2002) and authorities cited therein.

The parties were divorced in 1996. Pursuant to the Dual Final Judgment of Divorce, entered on August 6, 1996, the parties were to have joint legal custody of their two minor children, Nicholas and Spencer. Defendant was to have residential custody of both children and plaintiff was to have liberal visitation, including overnights, as arranged by the parties. Plaintiff was not ordered to pay child support because, as recited in Paragraph 6 of the Dual Judgment of Divorce, "She [was] financially incapable of same." In fact, pursuant to the Dual Judgment of Divorce, defendant was ordered to pay to plaintiff rehabilitative alimony for a period of six years.

A few years after the divorce, Nicholas left his father's home and began living with plaintiff. Spencer remained with defendant. By voluntary agreement between the parties, defendant began paying child support to plaintiff. He continued to do so until Nicholas left his mother's home to attend Trinity College in Hartford, Connecticut. At that time, defendant made the first tuition payment, but stopped making the payments he had been voluntarily making to plaintiff. That reduction of funds jeopardized plaintiff's ability to pay rent and prompted her to seek an order requiring defendant to show cause why he should not be required to make payments for back rent, pursuant to an alleged oral agreement between the parties, and why he should not be solely responsible for Nicholas' college tuition, fees and expenses. Defendant filed a cross-motion requesting that plaintiff pay him child support for Spencer and that she contribute toward Nicholas' college tuition and expenses.

On October 28, 2005, after hearing oral arguments presented by both parties, pro se, the court determined that defendant had improperly terminated child support for Nicholas, but that an adjustment was necessary because the amount defendant had been paying voluntarily was in excess of the Child Support Guidelines. The court, therefore, recalculated child support but refused to compel defendant to pay any amount for the support of plaintiff, as opposed to support for Nicholas. Turning to the issue of college expenses, the court stated:

[I]t would appear that under the circumstances considering the nature of the income of the parties, the court will not . . . order that Miss Barken contribute to the cost of tuition, room and board, books and other related fees. Dr. Pollack has taken on that responsibility and under the circumstances I do find considering her very difficult debt situation . . . that she appears to have very little in the way of assets.

On this appeal, defendant contends the court abused its discretion by not requiring that plaintiff contribute any sums to the college tuition and expenses. Referring to the factors enumerated in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), defendant asserts that the court failed to consider all of the relevant factors. The enumerated 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.

[Ibid.]

Recently, the Supreme Court reaffirmed that a trial court should balance the Newburgh factors and the identical statutory criteria of N.J.S.A. 2A:34-23(a) for determining support, "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 v. Gac, 186 N.J. 535, 543 (2006). We disagree, however, with defendant's assertion that the trial court failed to consider the relevant factors. At one point during the proceeding, the court stated:

[S]o it's clear, . . . for the record, that both parties have received an education, a good education. Both parties clearly have made a decision, whether it's a decision jointly made or a decision made separately, but that their children and in this case we're talking about Nicholas, that Nicholas should receive a reasonable college education.

It would appear based on the numbers that have been presented to me that the package for Nicholas is approximately $44,000 a year and he has received approximately $17,000 in various grants and loans and financial aid and there is approximately a $27,000 balance that is due which at this point Dr. Pollack has -- has agreed to pay and has been responsible for payment, although he is asking now that there be a contribution pursuant to the percentage of income. As far as I can tell, the percentage of income based on the 2004 income tax returns submitted by the two parties is approximately $38,000 for Mrs. Barken and approximately $180,000 for Dr. Pollack. That comes out to approximately 80 percent to 20 percent, but it's not quite that easy. There are other factors that need to be considered here.

The other factors included the difficulty or near inability of plaintiff to meet basic obligations such as rent and the recognized need for her to maintain a home to which Nicholas could return during recesses and breaks from his college schedule.

Based on our review of the record, we are satisfied that the trial court, without enumerating specifically each and every factor set forth in Newburgh, considered and identified as pertinent the relationship of the parties, their backgrounds, values and goals, the ability of each of the parents to contribute to the child's education and the financial resources available to them and to the child from other sources, including financial aid in the form of college grants and loans. While the court determined that plaintiff was no longer entitled to support from defendant, whether it was characterized as rehabilitative alimony or voluntary contributions, it also recognized that her financial circumstances would not reasonably permit her to contribute to Nicholas' college expenses. That determination is reasonably supported by the record and we will not second guess the judgment of the court on that issue.

Affirmed.

 

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A-1857-05T3

October 17, 2006