GEORGE DAHMS, JR. v. PATRICIA DE SANTO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0508-05T20508-05T2

GEORGE DAHMS, JR.,

Plaintiff-Respondent,

v.

PATRICIA DE SANTO,

Defendant-Appellant.

_________________________________

 

Argued October 5, 2006 - Decided January 16, 2007

Before Judges Cuff and Fuentes.

On appeal from Superior Court of

New Jersey, Chancery Division,

Family Part, Burlington County,

Docket No. FM-03-4817-89.

Leif M. Nissen argued the cause for

appellant (Archer & Greiner, attorneys;

Mr. Nissen, on the brief).

Michael S. Rothmel argued the cause for

respondent.

PER CURIAM

Defendant Patricia De Santo appeals from an order entered by the Family Part directing her to pay a proportionate share of her estranged daughter, Erin Dahms's, tuition as a fulltime undergraduate student at Hofstra University. Defendant argues that the trial court erred in ordering her to pay her share of this cost without first conducting a plenary hearing. Defendant further argues that, by failing to conduct this hearing, the court misapplied our holding in Moss v. Nedas, 289 N.J. Super. 352 (App. Div. 1996), as recently reviewed and interpreted by the Supreme Court in Gac v. Gac, 186 N.J. 535 (2006).

After a careful review of the record, we agree with defendant that she was entitled to a plenary hearing in which the court is required to make specific factual findings utilizing the factors outlined in Newburgh v. Arrigo, 88 N.J. 529 (1982) and N.J.S.A. 2A:34-23. We therefore reverse the order of the court, and remand this matter for the court to conduct a plenary hearing. We recite the following facts from the limited record developed by the parties through their written submissions before the trial court.

The parties' daughter, Erin, was born on September 23, 1986. Plaintiff and defendant were separated in 1988, at which time the court entered a final domestic violence restraining order, preventing communication between the parties. The parties divorced on July 5, 1990. After the divorce, Erin lived with defendant and visited her father on a regular basis, including weekly overnight stays, holidays, and five weeks in the summer. Both parties agree that between 1999 and 2001, defendant's relationship with Erin became strained.

In 2001, after an altercation between defendant and Erin, the Division of Youth and Family Services became briefly involved with the family. Following this incident, plaintiff petitioned the court to obtain residential custody of Erin, claiming that Erin no longer wished to live with defendant. On August 31, 2001, the Family Part granted plaintiff's residential custody petition.

Plaintiff wanted Erin to attend a private religious school. Thus, at plaintiff's insistence, Erin applied and was accepted to attend Holy Cross High School. According to defendant, she was never consulted or even informed about this aspect of Erin's secondary educational plans. She nevertheless acquiesced to it, because she ultimately believed it was in Erin's best interest to do so. As part of its order transferring custody of Erin to plaintiff, the court directed plaintiff to pay all of Erin's tuition to attend Holy Cross High School, without any contribution by defendant. Defendant was also relieved of any obligation to pay child support to plaintiff.

It is undisputed that defendant's last contact with her daughter was on November 17, 2001. Defendant claims that she has sent Christmas and birthday cards to Erin; has asked her to meet for lunch or dinner on numerous occasions; or to just meet for a "cup of coffee." All of her requests went unanswered.

Plaintiff searched for colleges for Erin without defendant's input. Erin has been diagnosed as suffering from a learning disability known as attention deficit disorder (ADD). Mindful of this problem, plaintiff and Erin researched institutions of higher learning that had specific programs for students with ADD. They ultimately settled on Hofstra University, because it has a program specifically designed for students with learning disabilities.

On April 7, 2005, Erin was accepted into Hofstra. On July 13, 2005, without any prior notice or discussion, plaintiff moved before the Family Part seeking an order directing defendant to contribute toward Erin's college tuition, and to pay child support. On July 27, defendant cross-moved, arguing that she should not be directed to pay a proportionate share of Erin's tuition cost, because she was not informed of or consulted about Erin's decision to attend Hofstra until just weeks before she was to begin classes.

Defendant also maintained that she cannot afford to defray the cost of her daughter attending this expensive private university. Given the limited financial resources available, defendant argues that plaintiff should have considered sending Erin to a less expensive school such as a community college or state university.

Plaintiff submitted a reply certification, emphasizing that he and Erin had chosen Hofstra because of the university's unique program for students with learning disabilities. He also challenged defendant's veracity by contending that she had failed to disclose that she owns a condominium unit from which she receives rental income.

Relying exclusively on the parties' "warring certifications," the motion judge entered an order directing defendant to contribute to Erin's college tuition, and pay weekly child support. The trial court determined that the Fall 2005 semester at Hofstra would cost $17,041, plus $600 for books and supplies. As a countermeasure, the court also ordered plaintiff and Erin to explore the maximum available number of loans and scholarships, and provide proof of applications to defendant. The court ordered Erin to pay ten percent of the tuition from income she earns working during vacations and in the summer.

After the loans and Erin's contribution were factored in, the court, using the parties' gross incomes, determined that plaintiff must pay 68% of the remaining tuition, and defendant must pay 32%. Thus, commencing with the Fall 2005 semester, defendant was responsible for $4,788. Finally, the court ordered Erin to keep defendant informed of her progress in school. If she fails to do so, defendant may no longer "be obligated to contribute toward the child's cost of college or the cost could be capped at a community college or in-state college rate."

With respect to child support, based on her income, the court ordered defendant to pay $71 per week. Finally, the court denied the requests of both parties for counsel fees, holding that neither party had acted in bad faith.

We now turn to the legal issues raised in this appeal. Defendant argues that in granting plaintiff's motion, the trial court erred when it applied the factors established in Newburgh, supra, 88 N.J. at 545, based only on the parties' certifications. We agree. It is well-settled that parents have equal responsibility for the care of their children. Gac v. Gac, 351 N.J. Super. 54, 61 (App. Div. 2002), aff'd, in part, 186 N.J. 535 (2006). Generally, however, parents have no duty to support their children once a child is emancipated. Gac, supra, 186 N.J. at 542; Newburgh, supra, 88 N.J. at 543. Reaching age eighteen, the age of majority, is prima facie evidence of emancipation, but is not conclusive evidence. Newburgh, supra, 88 N.J. at 543. If parents are found to have a duty to support their children beyond the age of majority, such a duty ordinarily includes the cost of post-secondary education. Id. at 544.

In Newburgh, the Supreme Court established twelve factors that courts should use when determining whether a parent has an obligation to contribute to a child's college tuition.

(1) [W]hether 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 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.

[Id. at 545.]

As the Court pointed out in Gac, supra, 186 N.J. at 54, these criteria have been essentially codified in N.J.S.A. 2A:34-23(a). Here, the record shows that the trial court did not give due consideration to all of these factors. Of particular concern is the court's failure to consider: (1) defendant's limited financial resources and how that would bear on her obligation to accept Erin's decision to attend a private university; (2) the impact defendant's estrangement from Erin had on plaintiff's decision to exclude her from any meaningful discussion about Erin's educational prospects; (3) the root factors that led to the breakdown of the parent/child relationship, and to what extent these root problems were exacerbated by defendant's post-separation conduct; and (4) the lack of evidence showing the parties' agreement to pay for Erin to attend college, either prior to their breakup, or as part of the judgment of divorce.

We agree with the trial court that the mere fact that defendant does not enjoy a relationship with her daughter is not dispositive of whether she remains obligated to pay a fair share of her college expenses. Moss, supra, 289 N.J. Super. at 355. That being said, however, a judge confronted with such a scenario must

reasonably find from the evidence that defendant's abusive conduct during the marriage [or as in this case post-divorce] so traumatized the children as to render nugatory any real possibility of a rapprochement. In that event, it would not be reasonable to penalize [the child] for the defendant's misconduct. Nor would it be reasonable to reward defendant by removing his [or her] financial obligation to contribute to his [or her] 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 defendant himself who was the architect of his own misfortune.

[Gac, 351 N.J. Super. at 64.]

Thus, as the Supreme Court cautioned in Gac, those seeking to impose a duty upon the non-custodial parent to pay a portion of the child's college costs, must include the non-custodial parent, in a timely and meaningful fashion, into the decision-making process concerning which college the child may ultimately attend. The failure to do so "weighs heavily" against ordering the non-custodial parent to contribute to the child's educational expenses. Gac, supra, 186 N.J. at 546.

Given the deficiencies noted, we are compelled to remand this matter for a plenary hearing. Prior to this hearing, the court may allow the parties to conduct discovery limited to the issues identified herein.

Reversed and remanded. We do not retain jurisdiction.

 

Defendant's Case Information Statement indicates a net annual salary of $19,820.

Plaintiff and Erin filled out forms for federal loans. Because plaintiff used his income as the basis for the loan application, Erin is only eligible for $1,313 in loans for Fall 2005, and $1,312 for Spring 2006.

(continued)

(continued)

10

A-0508-05T2

January 16, 2007