OF NEW JERSEY DIVISION OFER I EGBER v. MINDY C. FISHER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1181-10T2

OFER I. EGBER,

Plaintiff-Appellant,

v.

MINDY C. FISHER, f/k/a

MINDY EGBER,

Defendant-Respondent.

________________________________________________________________

Argued May 24, 2011 Decided June 17, 2011

Before Judges Payne and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2419-00.

Daniel Shapiro argued the cause for appellant (Law Office of Lawrence H. Kleiner, attorney; Mr. Kleiner, of counsel and on the brief).

Robert A. Vort argued the cause for respondent.

PER CURIAM

In this post-judgment matrimonial matter, plaintiff Ofer I. Egber appeals from a September 16, 2010 Family Part order that required him to pay forty-five percent of his son Justin's college tuition loans, with the balance to be paid by plaintiff's ex-wife, defendant Mindy C. Fisher. We affirm.

I.

Married in June 1985, the parties were granted dual judgments of divorce following a lengthy trial. The judge presiding over the trial found that plaintiff's earnings were $141,000 per year as of May 2002, and ordered him to pay permanent alimony to defendant of $500 per week,1 and child support of $340 per week for the two children. The judge imputed income of $35,000 to defendant. At the time of the divorce, Justin was only ten years old, and his sister, Erin, thirteen. The judgment of divorce (JOD) did not establish the financial obligation of the parties concerning their children's college education, but instead provided that "at such time as is appropriate, the parties [shall] confer and cooperate in the selection of appropriate schooling institutions."

Although the record is not entirely clear on the amount of plaintiff's financial contribution to Erin's college tuition, it appears that he paid the sum of $5000, as well as one semester's tuition at Baruch College, where the tuition cost was quite low as Erin was a New York City resident. At the time Erin was applying to college, plaintiff was $31,000 in arrears on the payment of his child support, and defendant did not seek to compel him to contribute any further amounts toward Erin's tuition, as she believed it would have been futile.

In June 2010, Justin graduated from Teaneck High School, where he was an honors student and a National Merit Scholar, with a class rank of 29 in a class of 352. In July 2010, defendant moved for an order compelling plaintiff to contribute to the cost of Justin's college education. In the certification she filed in support of her motion, defendant explained that Justin would be enrolling at the engineering school at the University of Illinois (UI) at Urbana-Champaign, where the tuition, room and board for the 2010-11 academic year totaled $46,000. She explained that the UI school of engineering was ranked fifth in the nation, noting that the cost of attending UI was "not much more" than the cost of attending the comparable program at Rutgers University. Rutgers, she added, ranks forty-fourth.

Defendant further explained that UI had awarded Justin a scholarship in the amount of $4017 for out-of-state residents. In total, Justin secured loans and scholarships totaling $10,500. Defendant explained to the judge that Justin had also earned a $1200 grant during his senior year in high school from the Township of Teaneck for performing work in the community. The remaining cost of approximately $30,2352 would be paid through a Federal PLUS Loan, for which defendant had signed a promissory note. The federal loan was based upon a family contribution of $5773, which meant that the parties were responsible for paying that amount themselves.

Defendant's motion sought an order compelling plaintiff to: 1) pay a portion of the $5773 family contribution; 2) sign the application for the Federal PLUS Loan, and to bear responsibility for whatever percentage of the payments on that loan the judge deemed appropriate; and 3) reimburse Justin for a percentage of the college loans that Justin had incurred in his own name.

Plaintiff opposed the motion, making three arguments:

[1.] Defendant never sought to have the court compel me to contribute to Erin's college [tuition] nor did she ask the court to compel me to sign any student loans. I did, however, directly help Erin financially when I had the money to do so.

[2.] Defendant has violated the Judgment of Divorce as at no time has she (or Justin for that matter) ever conferred, cooperated, discussed, consulted with or even asked my opinion as to what college Justin should attend. I have been totally shut out of Justin's college decision making process.

. . . .

[3.] Furthermore, I am no longer in an economic position to help with college. I am a jeweler; an industry that has been especially hard hit in this recession, as people no longer spend money on luxury items. . . .

During the September 16, 2010 motion hearing, although both parties were represented by counsel, only defendant was present. After administering an oath to defendant, the judge asked her a series of questions to assist the judge in applying the Newburgh v. Arrigo, 88 N.J. 529 (1982), factors. In response to the judge's questions, defendant explained that plaintiff had attended Justin's high school graduation, but had not chosen to attend any of the parent-teacher conferences or back-to-school nights. When asked whether Justin is in any communication with his father, defendant responded that plaintiff had purchased a cell phone for Justin and spoke to him from time to time by telephone. Although Justin had apparently gone with his father on vacations in the past, he had not done so "in the past maybe year or so."

The judge also asked defendant whether plaintiff had sent Justin a birthday card, called him on the phone or taken him out to dinner for his birthday, to which defendant responded that plaintiff had called his son to wish him happy birthday, but had not sent a gift or a card. Defendant also advised the judge that plaintiff had been involved, at least to some extent, in the college application process, because he had been required to provide his own financial information as part of the financial aid applications Justin had submitted.

At the conclusion of the hearing, the judge granted defendant's motion to compel plaintiff to contribute toward the costs of Justin's college education. The judge stated:

I am satisfied that this child has graduated at a high level of his high school class. I'm very happy to see that he's in a very fine institution. . . . And I'm not going to let the plaintiff, the dad, hide behind the fact that he [Justin] didn't take some affirmative action here to deal with the college issue. I'm not going to permit him to say that it was solely mom's responsibility and the son's to inform him. This is a three-way street here. He had contact with the child. He attended his . . . high school graduation. He had contact with him on his birthday. [The son] has a cell phone. There's no reason why he couldn't have asked questions, it was simple enough. I'm not going to let him hide behind his restricted interpretation of [the trial judge's] order . . . to skirt his responsibilities.

In calculating the amount of each party's financial contribution, the judge stated that defendant's income was $18,000 per year; and the judge accepted plaintiff's contention that his income had dropped from $141,000 per year, at the time of the divorce, to $1,044 per week by the time of the motion hearing. The judge also took into consideration the $400 per week alimony defendant was receiving, and ordered that the parties split the tuition obligation, with plaintiff being responsible for forty-five percent and defendant fifty-five percent. The judge signed a confirming order on September 16, 2010.3

On appeal, plaintiff argues that the judge misapplied the Newburgh v. Arrigo factors when she required him to contribute to Justin's college tuition because: 1) he had contributed very little toward Erin's college tuition, and it was therefore unreasonable for defendant to expect him to contribute to Justin's higher education expenses; 2) the tuition at UI is excessive in relation to his annual income; and 3) his relationship with his son "is estranged as evidenced by Justin not looking to his father for advice and guidance." On the latter issue, plaintiff asserted that because neither Justin nor his mother had conferred with him on the college selection process, he should not be required to pay forty-five percent of the costs of Justin's college education.

II.

This court must accept a trial judge's determination concerning a parent's obligation to contribute toward college tuition provided that the judge's factual findings are supported by substantial credible evidence in the record and the judge has not abused his or her discretion. Gac v. Gac, 186 N.J. 535, 547 (2006) (holding that the application of the Newburgh factors is reviewed for an abuse of discretion); Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (observing that the factual findings of the Family Part must be upheld if they are based on adequate, substantial, credible evidence).

Although parents are generally not obliged to support children after the child attains the age of majority, "in appropriate circumstances, the privilege of parenthood carries with it the duty to assure a necessary education for children." Newburgh, supra, 88 N.J. at 543. "In general, financially capable parents should contribute to the higher education of children who are qualified students." Id. at 544.

The Court identified in Newburgh twelve factors to be considered by trial judges when evaluating a claim for contribution toward the costs of higher education, including: 1) whether the parent would have contributed toward college tuition if the parents had remained married; 2) "the background, values and goals of the parent" in relation to the child's aspirations to attend college; 3) the amount of the contribution sought by the child; 4) the ability of the parent to make that payment; 5) "the relationship of the requested contribution to the kind of school or course of study sought by the child"; 6) the financial circumstances of both parents; 7) "the commitment to and aptitude of the child for the requested education"; 8) the child's ability to contribute to the costs of college education, including any assets owned by the child either outright or in trust; 9) the ability of the child to contribute to the cost of the tuition by earning income during the school year or summer vacation; 10) the extent of any financial aid, college grants or 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 intended course of study to the child's overall long-range goals[.]" Id. at 545.

Having considered plaintiff's contentions in light of the record and applicable law, we cannot agree with his claim that the judge abused her discretion when she required him to pay forty-five percent of Justin's college tuition loans. As a threshold matter, and before addressing plaintiff's precise arguments, we note that the judge has not ordered plaintiff to pay forty-five percent of the $46,000 annual tuition. Instead, she has ordered him to be responsible for payment of forty-five percent of the loan amount. There is a substantial difference between the two, as loans are paid over a term of years, rather than all at once. Although the record does not inform us of the amount of money plaintiff will be expected to pay per month as his share of the loan, the loan payment will be spread out over a ten to twenty-five year period, rather than the normal four-year span of college tuition, and will therefore cost plaintiff less than if he had been required to pay the tuition directly to UI. The United States Department of Education website specifies that the loan repayment period for Federal PLUS Loans "offers three repayment plans - standard, extended and graduated - that are designed to meet the different needs of individual borrowers. The terms differ between the repayment programs, but generally borrowers will have 10 to 25 years to repay a loan" at a rate of 7.9 percent interest per year.4

Turning to the judge's application of the Newburgh factors, we are satisfied that the September 16, 2010 order is well-supported by the record. Justin is obviously a gifted student with an exceptionally strong academic record who has been accepted at one of the nation's leading engineering schools. Despite plaintiff's assertion that he did not contribute significantly toward Erin's college tuition, and should therefore not be expected to contribute to Justin's, we are satisfied that in light of Justin's academic record, had the marriage remained intact, plaintiff in all likelihood would have expected Justin to attend college and would have been content to pay for it.

As for plaintiff's claim that the tuition at UI is unreasonably high, he has submitted nothing to controvert defendant's argument before the trial court that the $46,000 per year tuition at the UI School of Engineering is only $5000 higher than the comparable tuition at Rutgers. In light of that fact, we do not view the requested contribution to be excessive, considering the specialized course of study that Justin has chosen. We also note that Justin apparently has no financial resources of his own, as plaintiff has not argued that Justin himself should be paying a portion of the tuition from his own resources. To his credit, Justin earned, as we have noted, $1200 in his senior year of high school by performing work in his community.

We also reject plaintiff's claim that he should not be expected to contribute toward the cost of Justin's education because Justin did not discuss his plans with him in advance and he and Justin are "estranged." As the judge correctly noted, plaintiff was in contact with Justin during Justin's senior year of high school; he attended Justin's graduation, spoke to him on the telephone and called him on his birthday. The record is devoid of any evidence that Justin or his mother did anything to exclude plaintiff from participating in the college selection process. The record fully supports the judge's conclusion that plaintiff chose to keep himself isolated from that process in the hope that by doing so he could avoid any financial obligation. As the judge aptly observed, "this is a three-way street here." Plaintiff knew his son was applying to college when plaintiff completed his portion of the financial aid applications. It should have come as no surprise to him that Justin had indeed been accepted at a college of his choice.

Finally, on the actual apportionment of the financial cost, we note that defendant, who earns only one-third of the income earned by plaintiff, has been ordered to pay a greater share of the tuition loans than her ex-husband. In light of the extended payment plan available for Federal PLUS Loans, plaintiff's current income, and his earning potential, we perceive no abuse of discretion in the judge's order directing plaintiff to pay forty-five percent of the loan repayment costs.

Affirmed.

1 The alimony award was subsequently reduced to $400 per week by order of January 6, 2005.

2 Although the figures total $47,708, rather than $46,000, we base our description on the sums stated in the record.

3 The order also contains provisions reducing plaintiff's child support obligation for Justin; however, we need not address that portion of the order as it has no bearing on the issues presently before us.

4 http://studentaid.ed.gov/PORTALSWebApp/students/english/

parentloans.jsp (last visited June 4, 2008).