DAWN GROPPER v. CY ALLEN GROPPER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DAWN GROPPER, n/k/a

DAWN BARHITE,

Plaintiff-Respondent,

v.

CY ALLEN GROPPER,

Defendant-Appellant.

_______________________________

October 15, 2014

Before Judges Lihotz and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-647-94.

Cy Allen Gropper, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Defendant Cy Allen Gropper appeals from two post-judgment Family Part orders: the first, filed on March 20, 2013, ordering he pay $50 per week directly to the parties' son, a college student, as well as 58% of the child's college costs and expenses; and the second, filed on May 21, 2013, denying his motion to reconsider these obligations. On appeal, defendant argues the Family Part judge abused his discretion by ordering the payment of private school tuition when "the same education can be obtained at reputable public [state sponsored] schools" at a lesser cost. Defendant's reconsideration motion, which presented newly discovered evidence and legal challenges, was not considered because he filed this appeal prior to final disposition of the motion.

Our review should abide the Family Part's final determination of these issues. Since the judge was not afforded the opportunity to consider defendant's arguments raised on reconsideration, we are constrained to order a limited remand, requesting the trial judge to complete the motion review within twenty-one days. We retain jurisdiction.

The parties were divorced by a final judgment of divorce (FJD) filed on September 27, 1995. They have two children. The parties' property settlement agreement (PSA), incorporated by reference into the FJD, stated the parties shared joint legal custody and set forth their understanding to share the children's college education costs, to be paid 52% by defendant and 48% by plaintiff. Also, when this subject motion was filed defendant was paying $149 per week for child support.

At some point defendant moved to North Carolina. The parties' older child attended college in that state as an in-state resident. Their younger son graduated from high school in 2011. He applied and was accepted to enroll in an on-line private college, the University of Advancing Technology (UAT) and the University of North Carolina-Charlotte (UNC). The child did not immediately pursue his education, as he underwent spinal fusion to resolve scoliosis in October 2011. The following summer, with the consent of his parents, the child moved into the North Carolina residence of his older brother.

Based on the child's change of residence and his representation to UNC that his primary home was defendant's address, defendant filed a motion to modify child support using a shared parenting worksheet asserting neither parent had sole custody. Defendant proposed any child support be paid directly to the child and sought to resolve his college contribution obligations, noting the parties agreed the child would attend UNC, but disagreed regarding whether the child should be obligated to incur loans. Also, defendant learned the child had saved $12,000 from working and should bear some responsibility for his educational costs.

Plaintiff filed a cross-motion. She agreed the child support could be sent by Probation Services directly to the parties' son in North Carolina, but did not agree an adjustment in the amount was warranted. She also sought review to the parties' respective college contribution, maintaining defendant's income had increased from that set forth in the PSA. Finally, asserting the PSA obligated the parties to satisfy all college costs, she believed the child should decide whether he seeks to contribute to his college education and should not be required to borrow money.

Plaintiff asserted the child had a right to know what was going on and admitted she informed him of defendant's requests. She explained the parties' son wanted to pursue a career in video game design, a major offered by UAT, but not at UNC. He reluctantly agreed to attend UNC only to attend college. The child advised her of his desire to complete the coursework at UAT, not UNC. He also agreed he would borrow the difference in tuition costs between UAT and UNC.

A September 14, 2012 order required the parties to exchange current financial information by filing a case information statement (CIS), then mandated they "confer and cooperate in establishing child support" for their son. If they could not agree, a motion for modification was required. The order denied the requests to allocate college costs, without prejudice, again mandating the parties confer and cooperate after exchanging CIS's, addressing the factors considered in allocating college expenses, and attempting to reach an agreement. Believing the court's order did not resolve the fundamental issue as to whether an agreement was struck for the child to attend UNC, defendant filed a new motion, which plaintiff opposed. Plaintiff noted the child would borrow the cost of attending UAT, reducing the parental contribution to $12,011 per year, a cost she maintained was less than UNC.

The March 20, 2013 order modified child support by requiring defendant to pay $50 and plaintiff to pay $30 per week directly to the child, which the judge found was based on the parties' agreement as to the child's needs. As to college costs, the judge applied the child support factors set forth in N.J.S.A. 2A:34-23(a), ordering the tuition at UAT, "after all loans, grants, and scholarships have been obtained by [the child] and applied" shall be paid 58% by defendant and 42% by plaintiff.

Defendant's motion for reconsideration asserted new evidence he believed would obviate the child support obligation and requested the court calculate his college obligation using in-state tuition costs because the child was not attending the on-line schooling full-time. He learned the child was working, earning $160 per week, and enrolled for only nine credits per semester. Further, he maintained the judge erred in concluding the child's move to North Carolina was with the understanding he would enroll in UAT. Defendant reasserted the move was based on everyone's agreement the child would attend UNC. Finally, he noted the court erred in applying the child support statute rather than the factors in Newburg v. Arrigo, 88 N.J. 529 (1982). Plaintiff filed a cross-motion seeking enforcement.

Defendant filed his notice of appeal prior to the trial court's adjudication of his motion for reconsideration. On May 21, 2013, the Family Part judge denied defendant's motion concluding the court no longer had jurisdiction because the matter was on appeal, R. 2:9-1(a); however, the judge granted plaintiff's enforcement request, which is permitted. Ibid.

Following our review, we agree that the trial judge's statement of reasons supporting the March 20, 2013 order stating the parties respective college cost obligations were premised on an analysis of the child support statute, but does not mention consideration of the factors outlined in Newburg, supra, 88 N.J. at 545 (setting forth twelve factors to weigh when reviewing whether a parental responsibility for college expenses exists). While there is similarity between the two standards, there also are differences, warranting review when fixing a college cost obligation. See Jacoby v. Jacoby, 427 N.J. Super. 109, 121 (App. Div. 2012) ("The payment of college costs differs from the payment of child support for a college student."). See also Hudson v. Hudson, 315 N.J. Super. 577, 584 (App. Div. 1998) ("Child support and contribution to college expenses are two discrete yet related obligations imposed on parents.").

Also, defendant accurately identified the need to consider whether the child is enrolled full-time, as that can be the basis of a finding of dependence. See Newburgh, supra, 88 N.J. at 543-44; Khalaf v. Khalaf, 58 N.J. 63, 71-72 (1971); Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003). The facts offered require examination of this issue. If the child's college status warrants continued support, a "component impacting th[e] child support calculus considers what portion of the expenses, if any, the student must be responsible to bear. Of necessity, many students share the financial burden of meeting expenses by utilizing savings, summer wages, co-op jobs, work study payments, or part-time employment." Jacoby, supra, 427 N.J. Super. at 122.

Finally, consideration of family finances along with the respective school options must be weighed. See Finger v. Zenn, 335 N.J. Super. 438 (App. Div. 2000) ("The extraordinary cost of a college education results in economic sacrifice by intact families as well as divorced parents. Family finances may limit college options or even make college an unfulfilled wish."). See also Black v. Black, 436 N.J. Super. 130, 150 (Ch. Div. 2013) ("Regardless of what school a student personally wishes to attend, no parent should be expected to contribute more than he or she can reasonably afford."). In fixing the financial burden for a parent to pay college costs, the review must account for the ability to meet the needs of non-college, unemancipated dependents. Cf. Black, supra, 436 N.J. Super. at 152 (stating a parent's financial contributions to college tuition should consider "younger children in the family, who are good students and who are relatively close in age to an older, college-age sibling").

Here, defendant's filing of this appeal divested the trial judge of the opportunity of considering the claims advanced on reconsideration. R. 2:9-1(a). Disposition of these issues is critical and must precede appellate review. Accordingly, we vacate that portion of the May 21, 2013 order denying review of defendant's motion for reconsideration and order a limited remand of this matter to the trial court for review and consideration of the matters presented in that motion. Review shall be completed within twenty-one days and the judge's order, accompanied by a statement of findings and conclusions, shall be provided to this court. Upon receipt of the order, defendant shall notify the court of whether any issues remain for our review.

Remanded. We retain jurisdiction.