MARGARET SOSA CHINEA v. ROBERT VARGAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0338-09T1

MARGARET SOSA CHINEA,

Plaintiff-Respondent,

v.

ROBERT VARGAS,

Defendant-Appellant.

__________________________________

March 31, 2011

Argued December 7, 2010 - Decided

Before Judges Graves and Waugh.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FD-16-0808-91.

Toni Belford Damiano argued the cause for appellant (Damiano Law Offices, attorneys; Ms. Damiano, of counsel and on the brief).

Michael B. Meltzer argued the cause for respondent.

PER CURIAM

Defendant Robert Vargas appeals the order of the Family Part requiring him to contribute to his son's college tuition and refusing to reduce his child support payments while the son is in college. We affirm.

The parties, who have a college-age son, were never married. In January 2009, plaintiff Margaret Sosa Chinea filed an application for an increase in child support and for an order requiring Vargas to pay for their son s college education. The Family Part judge held a plenary hearing on July 8, 2009. The judge issued an order on August 19, 2009, requiring Vargas to pay sixty percent of his son's college tuition for each semester in which he was registered for at least twelve credits toward an undergraduate degree. He also ordered that Vargas continue paying child support at the rate of $130 per week. That rate was established when the son was approximately five-years old. Vargas appealed. We ordered a limited remand to the Family Part because the judge had not made findings of fact and conclusions of law, as required by R. 1:7-4(a). The judge issued a brief letter opinion, following which the parties filed their briefs and the appeal was argued.

The facts in this appeal are largely uncontested. At the time of the hearing, Chinea's annual income was approximately $80,000, whereas Vargas's income was approximately $94,000.

The son has been attending the State University of New York (SUNY) at Albany since September 2008. He resides in campus housing. The total cost for tuition, room, and board for the first year was about $24,000. Chinea paid for those expenses, plus approximately $7000 more in additional expenses. She had to borrow to do so. The son applied for and received some financial assistance in the form of student loans.

Vargas testified at the hearing that he would like his son to attend college. However, he contends that he was not consulted with respect to the choice of college, that his son should have attended a college in New Jersey with a lower tuition, and that he cannot afford to contribute to his son's college expenses. He also asserts that his son should live at Chinea's home while in college, pointing to what he argues are past behavioral problems indicative of a need for closer parental oversight.

We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges following an evidentiary hearing. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). A judge's purely legal decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

In determining the extent to which parents must contribute to a child's college education, the Family Part must consider the twelve factors set forth in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982):

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.

These factors were reflected in later legislation concerning the parents' child support obligations. N.J.S.A. 2A:34-23(a); see Kiken v. Kiken, 149 N.J. 441, 449-50 (1997).

Vargas argues that the judge did not consider the Newburgh factors in making his decision. While the judge's letter opinion following the remand was not as detailed in tying the factual findings to the applicable legal principles as it should have been, we nevertheless conclude from our review of the record that the judge did consider the Newburgh factors and that his decision is not an abuse of discretion in applying them.

As to factors (1) and (2), although the parties were never married, Vargas testified that he supports a college education for his son. He also supports his daughter from a subsequent marriage. The judge found that Vargas would have contributed had he been living with his son. In addition, Vargas is a member of his local board of education, which is indicative of the value he places on education. The judge found that a college education was consistent with Vargas's "values and goals."

As to factor (3), the judge found that the tuition associated with attendance at SUNY Albany is comparable to the New Jersey institutions Vargas preferred his son attend. We are satisfied that it is "comparable," even though somewhat higher. With respect to factors (4), (5), and (6), the judge found that Vargas has the ability to make the limited contribution he ordered, sixty percent of the tuition as opposed to the total cost. We note that Vargas had a significant income, and that, despite the fact that he is a realtor, he claimed to not know the value of, or his equity in, his own residence. Chinea will be responsible for the remaining tuition and all other costs.

As to factors (7) though (10), the judge found that the son was an honor-roll student and that he had the "aptitude" for a college education. He also found that the son had no appreciable assets of his own, but that he had "the ability to work part-time on a seasonal basis." He also found that the son had applied for and received some financial assistance.

With respect to factor (11), the judge rejected Vargas's contention that he had no relationship with his son. It is apparent from the judge's findings that the relationship was not overly close, but that there was a relationship. There was testimony that the son did discuss his choice of college with his father, but Vargas did not approve of the choice. The supporting parent does not have veto power over the choice of an educational institution, nor is the child necessarily limited to an in-state institution. Finger v. Zenn, 335 N.J. Super. 438, 444-45 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001). Inasmuch as the son had resided with the mother since he was a young child, her view of the desirability of attendance at an out-of-state college was entitled to considerable weight. It is also significant to note that the judge limited Vargas's responsibility to tuition alone.

Although there was no finding specifically related to factor (12), there is no basis to believe that the educational program chosen by the son, accounting, is inappropriate to the son's educational background and career goals. We do not see that factor as an issue in this case.

We are satisfied that the judge considered the applicable Newburgh factors and that his findings of fact are supported by the record. Despite the fact that Vargas's income is higher than Chinea's, the judge allocated the bulk of the overall college expenses to Chinea. We see no abuse of discretion in his determination to require Vargas to pay sixty percent of the tuition.

Vargas also argues that the judge erred in failing to reduce his child support obligation in light of his contribution to the college tuition and the fact that his son would not be living at home with his mother on a full-time basis. When a child is attending college and living on campus, contributions to college expenses and continued support for that child are "discrete yet related obligations," the extent of which "depends on the facts of each case." Hudson v. Hudson, 315 N.J. Super. 577, 584 (App. Div. 1998).

College expenses and child support due to the parent of primary residence are not governed by the child support guidelines when the child attends college away from home. Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A, 18 at 2447 (2011). The decision to allocate responsibility for college expenses and support is left to the discretion of the judge, which is to be applied after considering the relevant facts. Hudson, supra, 315 N.J. Super. at 582, 584-85.

Vargas is not contributing to his son's housing and living expenses at SUNY Albany, all of which are being born by Chinea, subject to whatever contribution is provided by the son through financial aid and employment. As a result, he is not paying twice for his son's housing and food. The son's attendance at college does not reduce Chinea's housing expenses. The judge specifically factored Chinea's continued receipt of child support in allocating "a significant portion of the college costs" to her. In addition, we note that the amount of child support has not been increased since the son was a young child. Consequently, we find no abuse of the judge's discretion in his refusal to lower Vargas's child support obligation.

In summary, we are satisfied that the judge considered the appropriate legal factors in making his decision, and that his factual findings are supported in the record. We see no abuse of the judge's broad discretion.

Affirmed.