RITA ENGELKE v. KEVIN ENGELKE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1097-09T31097-09T3

RITA ENGELKE,

n/k/a RITA RYAN,

Plaintiff-Appellant,

v.

KEVIN ENGELKE,

Defendant-Respondent.

________________________________

 

Argued June 2, 2010 - Decided

Before Judges Fuentes and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-199-03-Z.

Michael A. Taylor argued the cause for appellant (Taylor & Boguski, L.L.C., attorneys; Mr. Taylor and Jennifer C. Apell, on the brief).

Peter J. Banfe, Jr. argued the cause for respondent (Archer & Greiner, attorneys; Mr. Banfe, on the brief).

PER CURIAM

Plaintiff Rita Engelke appeals from that part of the September 23, 2009 Family Part order requiring the parties' daughter to apply for and accept all college scholarships, grants and loans available to her and to accept a Stafford loan, and reducing defendant Kevin Engelke's child support obligation. We affirm in part, reverse in part and remand for further proceedings.

I.

The parties were married on June 18, 1983. Two children were born of the marriage, a son, Ryan, born in 1989, and a daughter, Kristin, born in 1991. Ryan attends Clemson University and Kristin attends Quinnipiac University. Both children live on campus during the school year. During the summer, they live with defendant's mother in Seaside Park and work full time.

The court entered a final judgment of divorce on May 19, 2004 (JOD), which incorporated the parties' marital settlement agreement (MSA). As to child support, the JOD provides that:

Defendant will pay child support to plaintiff in an amount calculated under the Child Support Guidelines. . . .

. . . .

It is further specifically agreed that the amount of child support to be paid by one parent to the other at the time of a child's enrollment in college shall be discussed and negotiated by the parties prior to the child's enrollment in college, taking into consideration the respective incomes and assets of the parties; the child's assets and income, if any; the respective contributions being made by each party to the child's college education expenses; and the extent to which the child resides with each parent when not physically at the college or university.

As to the children's college expenses, the JOD provides that:

It is specifically acknowledged by the parties that each accepts an obligation to contribute to their children's college education expenses, taking into consideration, at the time each child is preparing to enroll in college, the respective income and assets of the parties and the child. The parties agree to consult with the goal of adopting a harmonious policy concerning the college education of the children. Accordingly, when each child is preparing to apply to college, the parties shall confer in an effort to reach an agreement in advance regarding the choice of an appropriate college, consistent with the family's means and the child's means, abilities and preference. The parties and the child shall make application for all available scholarships, financial aid and loans. The parties will then agree upon the payment for the balance owed for the college costs. Any disputes shall be resolved by a court of competent jurisdiction upon application properly made. (Emphasis added.)

Ryan was accepted to Clemson beginning in the fall of 2008. In August 2008, defendant filed a motion seeking to establish that he, plaintiff and Ryan would each contribute to one-third of Ryan's college expenses, with Ryan's contribution derived from scholarships he had obtained and a $5500 Stafford loan. Defendant also sought to reduce child support from $248 weekly to $154 weekly based on changed circumstances, i.e. that both children were living with his mother in Seaside Park during the summer and Ryan would be living on campus during the college term.

Plaintiff countered that she and defendant should contribute pro rata to Ryan's college expenses after applying the scholarship and loans. She agreed that Ryan should contribute to his education and should do so through the repayment of loans.

The trial judge enforced the parties' agreement that Ryan must timely apply for all loans and scholarships that may be available to him to defray his college costs. The judge then analyzed the factors set forth in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), and ordered defendant to contribute fifty-five percent and plaintiff forty-five percent of Ryan's college expenses after applying Ryan's scholarship, loans and other financial aid, and ordering that

[This] arrangement . . . shall also apply in the event the parties' daughter, Kristin, attends college, subject to modification by agreement of the parties or further Order of the Court for good cause shown.

The judge also granted defendant's motion to modify child support, and reduced it to $162 weekly effective August 13, 2008, finding that

The Court will review child support in this matter as Ryan's full-time enrollment in college is a substantial change in circumstances that warrants review, pursuant to Lepis v. Lepis, 83 N.J. 139 (1980). Defendant's income is calculated at $3,059 per week based upon the year-to-date gross income in his pay stubs. Defendant shall further receive a credit for $225 per week in alimony paid to Plaintiff, as well as for 116 overnights per year, pursuant to [the] parenting arrangement set forth in the Final Judgment of Divorce . . . Plaintiff's income . . . is calculated at $1,976 per week, per the year-to-date gross income set forth in the pay stubs. Pursuant to the attached Child Support Guidelines, support for Kristin is $145 per week. When Ryan is added, the support award increases to $191, for a marginal increase of $46. Pursuant to Appendix IX-A, 38% of the child support amount is attributable to fixed shelter expenses, which are incurred even while the child is away. As such, the sum of $17 per week shall be added to the base child support amount as expenses incurred for Ryan, which represents 38% of the marginal increase.

The judge entered a confirming order on November 17, 2008. Plaintiff did not file an appeal from this order or seek reconsideration.

Kristin began attending Quinnipiac in the fall of 2009. Her annual college expenses total $44,780. She receives a $31,000 annual athletic scholarship and a $1583 grant. She was also offered an unsubsidized $5500 Stafford loan, which she must re-pay. It is this loan that forms part of the dispute between the parties.

Prior to Kristin's attendance at Quinnipiac, defendant filed a motion to, in part, enforce that part of the November 17, 2008 order requiring Kristin to apply for and accept all scholarships, grants and loans offered to her. Plaintiff opposed the motion and filed a cross-motion to compel defendant to contribute to Kristin's college expenses over and above the amount of her scholarship. She argued that it was unfair to burden Kristin with debt where her parents have the financial ability to pay the amount of the loan, and where Kristin already contributes over seventy percent to her college expenses through her hard-earned athletic scholarship.

Defendant also sought to modify child support because both children would be living on campus during the college term, the parties will incur additional college costs, and the children worked during the summer. Plaintiff countered that her home is the children's primary residence, and she sought $200 per week for Ryan's $9,648.61 annual expenses and Kristin's $6,701.60 annual expenses, which she allegedly paid on their behalf.

As to college expenses the trial judge held that:

The language of the November 17, 2008 Order is clear. The children are to apply for and receive all available loans, grants and scholarships. The Stafford Loan offered to Kristin falls under this category. Kristin should be commended for her athletic achievement and she is being rewarded with a significant scholarship to Quinnipiac. This achievement, however, does not relieve her of her obligation to apply and receive other grants, loans and scholarships. She shall accept the Stafford Loan and provide documentation to both parties for their records, if she has not already done so. If she elects not to accept the loan, she shall be responsible for its value. The parties remain responsible for their proportionate shares of the balance of Kristin's tuition and college-related expenses.

The judge also reduced defendant's child support obligation to $50 per week, concluding as follows:

Both children are now attending college full time. It is appropriate that child support and each party's percentage of college contribution be revisited. In the [November 17, 2008 order], the Court determined that $17 a week for one child at college was an appropriate amount. Therefore, it seems reasonable that a child support obligation of $50 per week be used for two children. New Jersey Guidelines should not be utilized when, as in the case here, support is being determined for two children who are away at college for most of [the] year and who have the ability to contribute toward their own expenses through work-study programs or other part-time work. In addition, the parties are in disagreement as to how much time the children will spend with each parent during school vacations. For these reasons, [d]efendant's child support obligation is reduced to $50 per week. This obligation becomes effective August 21, 2009.

The judge entered a confirming order on September 23, 2009. This appeal followed.

II.

On appeal, plaintiff does not contend that the court failed to consider or erroneously applied the Newburgh factors to establish the parties' percentage contributions to the children's college expenses. Nor does she challenge Ryan's obligation to apply for and accept all scholarships, grants and loan available to him and to pay his loans. Rather, she contends that there is good cause not to compel Kristen to do the same, and that the judge failed to consider the Newburgh factors as to Kristin's circumstances.

Our review of a trial judge's findings is a limited one. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "Because of the family courts' special jurisdiction and expertise in family matters, [we] should accord deference to family court factfinding." Id. at 413. Accordingly, we will not "'engage in an independent assessment of the evidence as if [we] were the court of first instance,'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)), and will "not disturb the 'factual findings and legal conclusions of the trial judge unless [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.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Where our review addresses questions of law, a trial judge's findings "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Z.P.R., supra, 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)). Applying these standards, we discern no reason to disturb the judge's decision.

"In general, financially capable parents should contribute to the higher education of children who are qualified students." Newburgh, supra, 88 N.J. at 544. Accordingly, our Supreme Court has established the twelve Newburgh factors to be used in evaluating a claim for contribution toward the cost of higher education. Id. at 545. The court considers these factors and the criteria in N.J.S.A. 2A:34-23(a), "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).

Because the parties here could not agree on their respective contributions to their child's college expenses, the MSA required the court to resolve this dispute. The court did so, applying the Newburgh factors. There was no challenge to that determination. Accordingly, the judge was not required to re-visit the Newburgh factors with respect to Kristin. Rather, the judge was required to determine if changed circumstances warranted a different application of the MSA provision for Kristin than that for her brother.

Unlike in Newburgh, a property settlement agreement exists in this case, which requires the children to apply for and accept all scholarships, financial aid and loans. "Settlement agreements in matrimonial matters, being 'essentially consensual and voluntary in character, . . . [are] entitled to considerable weight with respect to their validity and enforceability' in equity, provided they are fair and just." Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)); see also Lepis, supra, 83 N.J. at 153 (1980). "[W]hile incorporation of a [property settlement agreement] into a divorce decree does not render it immutable, nor its terms solely governed by contract law, nevertheless, if found to be fair and just, it is specifically enforceable in equity." Eaton v. Grau, 368 N.J. Super. 215, 224 (App. Div. 2004) (citations omitted). "[A property settlement agreement] is 'subject to amendment by the court when changed circumstances make its enforcement inequitable[.]'" Heller-Loren v. Apuzzio, 371 N.J. Super. 518, 535 (App. Div. 2004) (quoting Brawer v. Brawer, 329 N.J. Super. 273, 284 (App. Div.), certif. denied, 165 N.J. 138 (2000)); see also Lepis, supra, 83 N.J. at 148-49. The party challenging the validity and enforceability of a property settlement agreement must "show that its terms, in light of changed circumstances, are unfair and unjust." Petersen, supra, 85 N.J. at 644.

Plaintiff acknowledged the validity and enforceability of the MSA's provision requiring the children to apply for and accept all scholarships, loans and other financial aid available to them when she agreed that Ryan should contribute to his college education and should do so through the repayment of loans. Thus, in order to now challenge this provision as to Kristin, plaintiff must show there are changed circumstances making its enforcement unjust and inequitable. She has failed to do so. Kristin's receipt of a scholarship does not establish changed circumstances warranting a deviation from the MSA.

III.

Plaintiff contends that in reducing defendant's child support obligation, the judge improperly used the Child Support Guidelines to calculate the amount of support to be paid for Ryan, utilized the flawed analysis from the November 17, 2008 order in reducing the amount to $50 weekly, and failed to review the children's budgets or actual expenses.

Courts may modify child support orders upon a showing of changed circumstances. N.J.S.A. 2A:34-23; Lepis, supra, 83 N.J. at 146. A party seeking to modify child support must make a prima facie showing of changed circumstances. Isaacson v. Isaacson, 348 N.J. Super. 560, 579 (App. Div.), certif. denied, 174 N.J. 364 (2002). While a number of events can warrant a finding of "changed circumstances," ultimately

[t]he proper criteria are whether the change in circumstance is continuing and whether the agreement or decree has made explicit provision for the change. An increase in support becomes necessary whenever changed circumstances substantially impair the dependent spouse's ability to maintain the standard of living reflected in the original decree or agreement. Conversely, a decrease is called for when circumstances render all or a portion of support received unnecessary for maintaining that standard.

[Lepis, supra, 83 N.J. at 152-53.]

The trial court is afforded substantial discretion to determine child support awards and other support obligations. Foust v. Glaser, 340 N.J. Super. 312, 315 (App. Div. 2001) (relying on Pascale v. Pascale, 140 N.J. 583, 594 (1995)). "If consistent with the law, such an award will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice." Foust, supra, 340 N.J. Super. at 315-16 (quotations omitted).

Despite the deferential standard of review applied to family court actions, we may disturb a trial court's determination of a support obligation if we are "not satisfied that it comports with governing legal standards." Foust, supra, 340 N.J. Super. at 316. For this reason, the court must comply with the requirements of Rule 1:7-4. "Naked conclusions do not satisfy the purpose of [Rule] 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980). Specifically, "Rule 1:7-4(a) requires that a trial judge disclose an analysis of the facts as they apply to the many applicable factors." Kas Oriental Rugs, Inc. v. Ellman, 407 N.J. Super. 538, 562 (App. Div.), certif. denied, 200 N.J. 476 (2009). "Findings which fail to permit a meaningful review of the evidence relied upon to justify the decision do not satisfy the rule." Wertlake v. Wertlake, 137 N.J. Super. 476, 486 (App. Div. 1975). If sufficiently clear factual findings are absent from the record, we will remand to the trial court for additional findings. Curtis, supra, 83 N.J. at 571.

Here, the judge found that changed circumstances warranted a reduction of child support to $50 weekly for both children based on their attending college full-time and their ability to contribute to their own expenses. However, the judge made no findings of fact and conclusions of law supporting his decision, and did not analyze the factors set forth in N.J.S.A. 2A:34-23(a). Accordingly, we remand this matter for specific findings of fact and conclusion of law as to the child support issue.

 
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

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A-1097-09T3

August 13, 2010