ANNE KAUFMANN v. MICHAEL FERRAIUOLO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4294-03T54294-03T5

ANNE KAUFMANN,

Plaintiff-Appellant,

vs.

MICHAEL FERRAIUOLO,

Defendant-Respondent.

__________________________________

 

Argued: December 12, 2005 - Decided February 10, 2006

Before Judges Cuff, Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Morris County, Docket No. FD-14-607-99.

Salvatore A. Simeone argued the cause for appellant (Cutler, Simeone, Townsend, Tomaio & Newmark, attorneys; Mr. Simeone, on the brief).

Moira E. Colquhoun argued the cause for respondent (Colquhoun & Colquhoun, attorneys; Ms. Colquhoun, on the brief).

PER CURIAM

The central issue in this appeal is the responsibility of defendant to contribute to the college education of his daughter. The trial judge determined that defendant had no financial responsibility based on the absence of a relationship between defendant and his daughter. We hold that this determination could not have been reached without an evidentiary hearing. Therefore, we reverse and remand.

The parties were married in New Jersey on January 2, 1982. Two children were born of the marriage: Amy, born April 12, 1984; and Andrew, born March 15, 1990. The parties were divorced on April 11, 1994. In their Separation Agreement, the parties agreed to share joint custody of the children; plaintiff was designated the primary residential custodian. The agreement provided a schedule for holiday visits with the children. Additionally, the agreement provided that the parties will share the cost of the children's post-secondary education. The agreement provided "to the extent each is financially able to do so . . . [t]he education-related expenses for which the parties shall be responsible shall be those to which they reasonably consent, incurred by a child matriculating at an accredited post-high school educational institution." At the time of the divorce, plaintiff resided in Massachusetts; defendant had relocated to New Jersey. Since the divorce, plaintiff has moved to Connecticut.

The issue of defendant's contribution to his daughter's college education had been simmering between the parties throughout 2003. Finally, on January 6, 2004, the judge increased defendant's child support obligation, determined that defendant should bear 41% of the unreimbursed medical expenses, and directed the parties to submit whatever documentation and legal argument they desired on the issue of defendant's contribution to college expenses. Plaintiff filed her submission on January 15, 2004; defendant submitted a brief, certification and letter on February 6, 2004; plaintiff submitted a reply on February 11, 2004.

By order dated February 27, 2004, the judge determined that defendant had no obligation to contribute to the college expenses of his daughter. Pursuant to Rule 2:5-1(b), the judge rendered an oral opinion on April 16, 2004. In the opinion, the judge noted that neither party requested a formal hearing. He then proceeded to apply the principles set forth in Newburgh v. Arrigo, 88 N.J. 529 (1982), and found that the parties would have sent their daughter to college and would have contributed to the cost of her education, if they had remained married. He also found that each parent was well-educated and appreciated the value of a higher education, and that plaintiff sought no more than a proportionate contribution. The judge also found that the parties' daughter is well-suited for the educational course she selected and had applied for and received financial aid, including scholarships.

He also found that defendant had experienced a prolonged period of unemployment despite efforts to secure suitable employment, that the parties' daughter and plaintiff selected the college at which the daughter enrolled "without ever consulting with the defendant," and that the financial resources of the parents were disproportionate due to defendant's prolonged unemployment.

Finally, the judge addressed the relationship between defendant and his daughter, referring to this factor as "an extremely important factor." The judge stated:

In this case, the Court finds that due to the parties' divorce and a number of issues over the years, that the relationship between the parties' daughter, Amy, and the defendant, her father, has been extremely strained. The Court found from reviewing the documentation in the form of certifications submitted by both parties, that in fact the defendant has had very little or no contact with his daughter since she was approximately age 12. Therefore being over the past seven to eight years, some next to no contact.

The Court found in the documents that were submitted that the defendant had attempted on a number of occasions to reach out to his daughter but unfortunately was unable to develop a relationship with his daughter.

Court therefore finds that no discussions took place between the defendant and his daughter when her decision was made to attend Bentley College, nor were any discussions[,] the Court finds[,] made about college in general. The Court does find while the parties were married, that the defendant had talked to the plaintiff about ideas of the children attending college, but once the divorce was over and the parties separated, the Court made a finding from the documents submitted that again, there was very little if any contact between the parties' daughter and the defendant.

. . . .

In reviewing the factors in this particular case, the Court finds that it would be inappropriate and contrary to the direction that the Supreme Court provided in Newburgh versus Arrigo, and again our Appellate Division in Moss versus Nedas at 289 New Jersey Super[.] 352, [360 (App. Div. 1996)], to direct that the defendant here provide financial assistance to his daughter for her college.

In conclusion, the judge reiterated that neither party requested a formal or evidentiary hearing.

Implicit in the judge's decision is that someone is to blame for the deterioration of the relationship between defendant and his daughter and that the daughter is at fault. To the extent that blame or fault has any relevance to the determination, such a finding cannot be made without an evidentiary hearing. Of equal, if not greater, significance is the need to evaluate the credibility of the parties' submissions because the parties' rendition of events is wholly at odds. Plaintiff recounts numerous incidents when defendant scheduled a visit with his children and failed to appear. She relates numerous instances of defendant's absences when his son was hospitalized with a serious health condition. Plaintiff related that her daughter tried on several occasions to engage her father in a discussion about her educational future. She forwarded him her test scores and information about the schools she was considering.

Repeated instances of broken engagements or unexplained absences or even inquiries in circumstances when a reasonable person would anticipate at least a telephone inquiry take a toll on even the most solid relationships. The judge made no reference to these incidents, and his finding that the college selection was without any participation by defendant directly contradicts plaintiff's submissions. We must assume, therefore, that the judge failed to consider plaintiff's submissions or found her account incredible or irrelevant. Plaintiff's account, if true, is not irrelevant. More to the point, despite the parties' failure to request an evidentiary hearing, the issue presented to the court and the conflicting certifications on every relevant element submitted by the parties precluded resolution of this important issue without an evidentiary hearing.

Due to the absence of an evidentiary hearing, we reverse the determination regarding college expenses and remand for further proceedings. On remand, the matter must be submitted to another judge. Having determined that plaintiff and the parties' daughter lack credibility, further proceedings in this case must be conducted by another judge. P.T. v. M.S., 325 N.J. Super. 195, 220-21 (App. Div. 1999).

The February 27, 2004 order also allocated the unreimbursed medical expenses between the parties and requires defendant to contribute $20 each week for unreimbursed medical expenses. Plaintiff argues that the change from $40 to $20 each week was inadvertent. We have carefully reviewed the record as it pertains to this issue and determine that plaintiff's contention is without merit.

We, therefore, affirm in part and reverse in part the February 27, 2004 order. We remand for an evidentiary hearing on the issue of defendant's obligation to contribute to the college expenses of his daughter consistent with this opinion.

 

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A-4294-03T5

February 10, 2006