RONDA ORERO v. JOSE ORERO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2230-08T32230-08T3

RONDA ORERO,

Plaintiff-Respondent,

v.

JOSE ORERO,

Defendant-Appellant.

____________________________________________________

 

Argued December 8, 2009 - Decided

Before Judges Grall and Messano.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1277-96.

Vera Ann De Lear argued the cause for appellant (Karen Kirchoff Saminski, LLC, attorneys; Ms. De Lear, on the brief).

Andrew Rubin argued the cause for respondent.

PER CURIAM

In this post-judgment Family Part matter, defendant Jose Orero appeals from the denial of his motion for reconsideration that followed entry of an earlier order that granted plaintiff Ronda Orero's motion to compel defendant to contribute to the costs of their daughter's college education. We have considered the arguments defendant raises in light of the record and applicable legal standards. We affirm.

I.

The parties were married in 1987 and divorced in 1996. Two children were born of the marriage, a daughter in 1989 and a son in 1991. The property settlement agreement (PSA) incorporated into the parties' divorce judgment provided: "The [p]arties . . . agree that if the children are capable and have the desire to attend college they shall each contribute to the best of their ability."

On July 18, 2008, plaintiff moved for an order compelling defendant to contribute to the expenses of their daughter's college education. In support of the motion, she attached a letter sent by her attorney to defendant a year earlier when the couple's daughter was about to matriculate as a freshman at the University of Colorado. The July 2007 letter set forth the amount of financial aid that plaintiff expected, and requested defendant to contribute some of the balance of the expenses. Plaintiff indicated her willingness to contribute nearly fifty percent of the unpaid balance from savings in a "529 account," and agreed to split the remainder with defendant. Defendant responded by letter to plaintiff's counsel proposing a "'one time college credit' of $20,015 per child." Defendant conditioned his payment of the "one time college credit" upon each child's ability to maintain a certain grade average while in college, and other modifications of the PSA. Plaintiff rejected the proposal out of hand as "an attempt . . . to lower or eliminate [defendant's] child support obligations."

In her certification supporting the motion, plaintiff alleged that defendant was fully aware of their daughter's intention to attend college in Colorado. After applying the funds available from an "NJBest 529" account, plaintiff paid the shortfall during the prior school year through "loans which [she] guaranteed." Plaintiff claimed defendant remained employed at General Electric, as he had for the last thirty years, and "ma[de] well in excess of $100,000 a year with full benefits." On the other hand, plaintiff was "employed as a hair dresser and ma[de] approximately $15,000 a year." Plaintiff attached a current Case Information Statement (CIS) to corroborate her claims.

Defendant's opposing certification claimed that his daughter had spoken to him about potential colleges on only one occasion, and that he "suggested . . . that she look at Rutgers and other schools within the State of New Jersey." His daughter, however, opposed his suggestion. Defendant claimed that he had only one communication with his daughter after she started school, and that he was not "provided with [her] grades or progress reports since she started college." Referencing plaintiff's counsel's letter from the prior year, defendant claimed that he had never received the tuition bill. Defendant further alleged that his salary was $85,000 per year, and that he was helping three daughters from a prior marriage "with their college expenses." He was "willing to contribute" toward his daughter's college costs, "but . . . d[id] not feel that [he] should be made to pay 50% . . . ."

Plaintiff's reply certification noted that defendant's W-2 reflected earnings in excess of $91,000, and that defendant had not disclosed the value of his pension with General Electric. Plaintiff attached several e-mails that she sent to defendant, alerting him of their daughter's interest in attending school in Colorado prior to her actual matriculation in 2007.

On August 6, 2008, after oral argument, Judge Peter J. Melchionne entered an order that required defendant to pay plaintiff fifty percent of their daughter's "college tuition/costs for the college year 2007-2008 within 60 days . . . ." The order further provided that defendant would pay plaintiff "50% per annum . . . by August 15 of each year for the college years commencing in the fall semester 2008 . . . until [their daughter's] graduation." The judge denied plaintiff's request for counsel fees.

Defendant filed a motion for reconsideration on August 25, and plaintiff cross-moved to enforce litigant's rights and sought counsel fees. Defendant reiterated his claim that his daughter had not consulted him prior to deciding to attend college in Colorado. Since plaintiff had not demonstrated that his daughter was actually enrolled for the 2008 school year, defendant asked that his daughter be declared "emancipated," and sought a reduction in child support under the PSA. Defendant claimed that his income for the last two years had been "inflated" because his employer was short-staffed. Lastly, defendant alleged that the judge had "overlooked the Newburgh v. Arrigo factors" by failing to take into account his obligations to his other children.

In her certification in support of the cross-motion, plaintiff alleged defendant had not complied with the prior order by paying her the monies she had expended during the 2007-2008 school year. Plaintiff attached proof of her daughter's attendance at classes for the current school year, and stated she was using the child support payments she received under the PSA to defray her daughter's shelter expenses, thus reducing defendant's obligation vis- -vis total college expenses. Plaintiff's counsel supplied a certification of services.

On November 21, 2008, Judge Melchionne entertained oral argument on the motion and cross-motion. The judge noted that a motion for reconsideration "is not designed to be a second bite of the apple, but rather to give the Court an opportunity to correct perceived errors." He further observed that the Newburgh factors were specifically considered when he decided the original motion, as well as defendant's claim that he had not been consulted regarding his daughter's decision to attend school in Colorado. He denied defendant's motion for reconsideration.

The judge granted plaintiff's cross-motion to enforce litigant's rights based upon defendant's failure to comply with the earlier order regarding payment of the prior year's college expenses, and reserved on the issue of counsel fees. Subsequently, on December 23, 2008, Judge Melchionne entered an order awarding plaintiff $2611.50 in counsel fees.

This appeal ensued.

II.

We address briefly the scope of the appeal because it engendered motion practice by the parties after defendant's notice of appeal was filed. That notice sought review of only the November 21, 2008 order denying defendant's motion for re-consideration, and the December 23, 2008 order awarding plaintiff counsel fees. It did not seek review of the original August 6 order granting plaintiff's request to compel payment of college expenses.

The failure on plaintiff's part to include in the notice of appeal and case information statement the original order permits us to limit our review solely to the denial of his motion for reconsideration. Fusco v. Board of Educ. of the City of Newark, 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544 (2002). That failure may be overlooked, however, if "the substantive issues in the case and the basis for the motion judge's ruling on the [original motion] and [the] reconsideration motion[] [were] the same." Id. at 461. In this case, Judge Melchionne specifically reviewed in great detail his original decision while rendering his decision on defendant's motion for reconsideration; moreover, plaintiff has addressed the merits of defendant's arguments. In the interests of justice and to effectuate a complete review, we consider all the arguments defendant now raises on appeal.

Defendant argues that he should not be required to contribute fifty percent to the cost of his daughter's college education because 1) the terms of the PSA only required him to contribute to the "best of [his] ability"; 2) under Newburgh, supra, his daughter was only "entitled to tuition at a state college level"; and 3) he was "unable to participate in her educational decisions." Defendant contends that he was entitled to a plenary hearing on the issue. Furthermore, defendant argues that the requirement that he contribute to his daughter's college expenses violates "equal protection principles." Lastly, defendant challenges the award of counsel fees to plaintiff.

We initially dispatch with defendant's claim that a plenary hearing was necessary. Clearly when material facts regarding the parties' obligations and abilities to pay their child's college expenses are in dispute, a plenary hearing is required. Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006). But this was not such a case.

At the hearing on plaintiff's initial motion, defendant acknowledged the accuracy of his financial information and challenged plaintiff's assertion that she made only $15,000 as a hairdresser. The judge adopted defendant's claim that plaintiff made another $10,000 in tips that were not reported as income, and imputed that amount of income to plaintiff. Thus, the judge accepted defendant's factual assertions regarding each parties' financial resources.

The judge took testimony from defendant regarding his financial obligations to his three older daughters by a prior marriage. Defendant revealed that he had no current college expenses in that regard. Although defendant claimed he had not been consulted regarding his daughter's decision to attend college out-of-state, the judge noted that defendant never claimed that as the reason for his decision not to contribute. Rather, as his attorney confirmed, defendant refused to contribute because "[h]e can't afford to pay . . . ." In short, there were no material factual disputes that required a plenary hearing.

We reject defendant's argument that the language of the PSA implied a subjective standard that required him to contribute to his daughter's college expenses only if he determined it to be within his ability. Courts are required to enforce a marital agreement in accordance with the intent of the parties. Pacifico v. Pacifico, 190 N.J. 258, 266 (2007). "The court's role is to consider what is written in the context of the circumstances at the time of drafting and to apply a rational meaning in keeping with the expressed general purpose." Ibid. (citations and quotations omitted).

Here, the PSA placed an affirmative obligation upon both plaintiff and defendant to contribute "to the best of their abilities." In the first instance, this reflects defendant's agreement to extend his general parental duty to support his daughter to include an obligation to pay some of the costs of her higher education. See Newburgh, supra, 88 N.J. at 544. Additionally, the PSA required defendant to contribute not if he believed he had the ability to do so, but rather it required him to contribute to the best of his ability. While this is undoubtedly broad language, it cannot be read to provide defendant with the unilateral ability to decide when he was able to contribute and when he was not.

We also reject defendant's criticism that the judge's consideration of the Newburgh factors was inadequate. See N.J.S.A. 2A:34-23(a) (codifying the factors). The Court recently explained that when these issues are brought before the Family Part,

[a] trial court should balance the statutory criteria of N.J.S.A. 2A:34-23(a) and the Newburgh factors, 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).]

The judge clearly considered the Newburgh factors at the first hearing. He determined that defendant was financially capable of contributing to his daughter's education, and that his ability far exceeded plaintiff's ability. The judge also found that defendant expected that his daughter would wish to further her education.

The fact that defendant's other daughters attended school in New Jersey is not particularly relevant to the analysis. The judge considered the relative costs associated with attending schools in New Jersey and in Colorado. He specifically considered that issue in relation to the Newburgh analytic framework. We find no basis to disturb his findings.

Lastly, defendant asserts that because he was unable to participate in his daughter's decision to attend school in Colorado, he should not be compelled to contribute to the costs. He relies, in this regard, upon the Court's holding in Gac, supra.

However, defendant's reliance on Gac is misplaced. There, the Court relieved the non-custodial father of any obligation to contribute to his estranged daughter's college expenses after they were incurred. The Court concluded that "[t]he failure of both [the mother and daughter] to request that [the father] assist . . . at a time that would have enabled [him] to participate in [his daughter's] educational decision as well as to plan for his own financial future weighs heavily against ordering him to contribute to her educational expenses after her education was completed." Gac, supra, 186 N.J. at 546.

Here, defendant never claimed to be estranged from his daughter. Although he contended that he had only one discussion with her about her choice of schools, it is clear, and Judge Melchionne so concluded, that defendant's objection was not based upon a lack of discussion between him and his daughter; rather, defendant simply did not approve of her decision to attend an out-of-state school. The essence of defendant's objection was the costs involved; as defendant admitted during the first hearing, he claimed an inability to contribute at all because of other financial demands. Moreover, unlike the facts presented in Gac, having made her first request for contribution in 2007 before her daughter matriculated, plaintiff did not wait until after all the college costs were incurred to assert her claims under the PSA.

We find no merit to defendant's argument that compelling a non-custodial parent to contribute to college expenses when such an obligation is not imposed upon a parent in general is a violation of the Federal or State Constitution. The Gac court specifically declined to consider the issue since it had not been raised below. 186 N.J. at 547. Defendant provides no specific support for his argument.

We simply note that unlike the circumstances presented in Gac, in this case, defendant voluntarily executed a PSA that obligated him to contribute to his daughter's college expenses to the best of his ability. Defendant willingly accepted such responsibility. As such, we fail to see any validity to defendant's constitutional claim. See R. 2:11-3(e)(1)(E).

Lastly, defendant contends Judge Melchionne erred in awarding plaintiff counsel fees associated with her opposition to his motion for reconsideration and her cross-motion to enforce litigant's rights. He claims his motion for reconsideration was made in good faith and presented numerous facts that the judge had failed to consider.

The award of counsel fees rests within the sound discretion of the judge. Addesa v. Addesa, 392 N.J. Super. 58,78 (App. Div. 2007). Our court rules specifically guide the exercise of that discretion by listing those factors to be considered prior to any award. See R. 5:3-5(c).

Here, Judge Melchionne found that defendant's motion for reconsideration was "frivolous," though he specifically did not conclude it was brought in bad faith. See R. 5:3-5(c)(3) (explaining that one factor to consider is "the reasonableness and good faith of the positions advanced by the parties"). However, he also concluded that plaintiff's cross-motion was necessary because of defendant's disregard of the court's prior order compelling reimbursement of the 2007-2008 school year costs. We find no mistaken exercise of discretion in awarding plaintiff counsel fees under the circumstances.

Affirmed.

 

Newburgh v. Arrigo, 88 N.J. 529 (1982).

The notice of appeal also listed aspects of the November 21 order that dealt with issues other than college expenses. However, defendant has not briefed those issues and we therefore deem them to be waived. Finderne Heights Condominium Ass'n v. Rabinowitz, 390 N.J. Super. 154, 166 (App. Div. 2007); Pressler, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2010).

"In evaluating the claim for contribution toward the cost of higher education, courts should consider all relevant factors, including (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." Newburgh, supra, 88 N.J. at 545.

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A-2230-08T3

February 19, 2010