WAYNE EDWARDS v. JANET EDWARDS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1438-11T4

WAYNE EDWARDS,

Plaintiff-Respondent,

v.

JANET EDWARDS,

Defendant-Appellant.

December 27, 2012

Submitted October 10, 2012 - Decided

Before Judges Fisher and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1752-91.

Ansell Grimm & Aaron, P.C., attorneys for appellant (Donna L. Maul, of counsel and on the brief).

Law Offices of Julia S. Dasaro-Drescher, attorneys for respondent (Ms. Dasaro-Drescher, of counsel and on the brief; Jason Matey, on the brief).

PER CURIAM

On August 9, 2011, plaintiff Wayne Edwards' motion to reduce child support was granted as to the parties' remaining unemancipated son, a college student. Defendant Janet Edwards' cross-motion to compel plaintiff to reimburse a portion of funds she borrowed from her father to pay that son's college tuition and related expenses was denied, as was her further application to compel plaintiff to pay towards an outstanding college tuition bill. We affirm for the reasons initially stated by the trial judge and reiterated when on October 14, 2011, he denied reconsideration.

The parties divorced in 1991. Their property settlement agreement required each parent to contribute based on "their ability [to pay] toward the college educational expenses of the children . . . ."

Defendant's father established a college education trust totaling $46,000 for the son. The son attended community college for two years from the fall of 2007 to the spring of 2009, followed by a year-long certificate program in the New York Film Academy ending in the spring of 2010, at which point the trust fund was exhausted. That fall, he enrolled in the New School University to complete his bachelor's degree, residing in Brooklyn, and on weekends, returning home to defendant's residence. The son obtained a partial scholarship and some loans, but because these fell short of his needs, defendant's father began to pay his living expenses plus the tuition balance not covered by his financial aid package, on the condition that these advances were to be paid back by plaintiff and defendant. By June 2011, these advances came to $29,284. It is undisputed that plaintiff was unaware of these advances and made no commitment to repay defendant's father. The son was scheduled to graduate after completing the spring 2012 semester.

Plaintiff, an electrician, retired at the age of fifty-five after a year of being unable to find work and collecting unemployment. His sole income consists of a $2855 monthly retirement pension generated from an annuity. Defendant, for reasons not satisfactorily explained in the record, only works part-time, reporting $6000 on her 2010 income tax return. The orders appealed from were the culmination of approximately three motions addressing emancipation and college contributions, plus at least two motions for reconsideration, and an order to show cause, over approximately a year and a half.

Because defendant questioned plaintiff's early retirement, the judge, although finding plaintiff's actual income to be $34,260 per year, attributed $40,000 to him as annual income. The judge also imputed income to defendant, assuming her earnings to be $15,080 per year based on the then-minimum wage in New Jersey, $7.25 per hour.

The court refused to compel plaintiff to repay defendant's father; he instead found that neither parent had sufficient income to contribute towards the child's college education. He did, however, order plaintiff to pay $100 per week in child support.

In reaching his decision, the judge stated: "it is clear to this Court that neither of these parties, alone or together, are financially capable of contributing to their son's college expenses. In light of the relevant factors in Newburgh [v. Arrigo, 88 N.J. 529, 545 (1982)], the court denies [d]efendant's request that [p]laintiff shall contribute to college expenses for the parties' son."

Defendant raises the following points for our consideration on appeal:

POINT I

NEWBURGH v. ARRIGO, 88 N.J. 529 (1982) DICTATES TWELVE CONSIDERATIONS FOR THE COURT ON POST HIGH SCHOOL/COLLEGE CONTRIBUTION ISSUES, AND THESE FACTORS WERE NEVER EXPLORED BY THE COURT BELOW, NOR FINDINGS OF FACT MADE THEREON IN THE COURSE OF FOUR MOTIONS ON THE ISSUE OF PARENTAL CONTRIBUTION TOWARD JONATHAN EDWARD[S'] POST HIGH SCHOOL EDUCATION.

POINT II

THE COURT FAILED TO ASSESS THE REQUISITE FACTORS FOR CHILD SUPPORT UNDER N.J.S.A. 2A:34-23A IN DETERMINING THE ISSUE OF CHILD SUPPORT MODIFICATION BY ORDER DATED MAY 7, 2010. []

POINT III

THE FAILURE OF THE COURT TO TIMELY ASSESS THE FACTORS IN NEWBURGH v. ARRIGO, 88 N.J. 529 (1982) AND N.J.S.A. 2A:34-23 UNDULY PREJUDICED DEFENDANT AND JONATHAN, BOTH AS TO CHILD SUPPORT AND COLLEGE CONTRIBUTION AFTER THE TRUST FUND EXPIRED, DUE TO PLAINTIFF'S VOLUNTARY EARLY RETIREMENT WHICH COMMENCED JANUARY 2011 AND THE FAILURE OF THE COURT TO CONSIDER THE PROPRIETY OF RETROACTIVITY OF AN ORDER FOR COLLEGE CONTRIBUTION/CHILD SUPPORT MODIFICATION.

POINT IV

THE DISCRETION OF THE COURT IN DETERMINING CHILD SUPPORT AND COLLEGE CONTRIBUTION IS NOT UNBRIDLED, AND MUST BE EXERCISED WITH CIRCUMSPECTION UNDER THE AUSPICES OF RECEIPT OF ALL NECESSARY INFORMATION AND EXPLORATION OF ALL RELEVANT CONSIDERATIONS OF THE CHILD AND THE PARTIES.

In our view, these contentions sidestep the wellspring of the judge's decision: the parties' limited financial resources. The points of error also ignore the parties' settlement agreement, in which they recognized that their obligation to pay towards their children's college education would be circumscribed by their financial status at the time the need arose. The motion papers firmly established, as the trial judge correctly concluded, that the parties, either individually or collectively, were financially incapable of contributing to the college expenses. There being no dispute on that question, the judge properly denied defendant's motion.

Defendant also argues that the judge erred in denying reconsideration. The standard for appellate review of the denial of a motion for reconsideration is abuse of discretion. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). Motions for reconsideration are granted only in very limited circumstances, and "'should be used only for those cases which fall into that narrow corridor in which either (l) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.'" Fusco v. Board of Educ. of City of Newark, 349 N.J. Super. 455, 462 (App. Div.) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)), certif. denied, 174 N.J. 544 (2002).

The court did not express a decision based upon a palpably incorrect or irrational basis, nor did it fail to consider probative, competent evidence. Reconsideration was not warranted, and the original decision was supported by the parties' submissions.

Affirmed.