KATHLEEN HAYMAKER v. ROBERT J. HAYMAKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

KATHLEEN HAYMAKER

(N/K/A WILDBLOOD),

Plaintiff-Appellant,

v.

ROBERT J. HAYMAKER,

Defendant-Respondent.

_______________________________________________

February 26, 2015

Argued October 28, 2014 Decided

Before Judges Accurso and Manahan.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-328-96.

Jack A. Berenato argued the cause for appellant.

Robert J. Haymaker, respondent, argued the cause pro se.

PER CURIAM

Plaintiff appeals from a post-judgment order that requires her to contribute to her daughter's college expenses and sets a child support obligation and payment of arrears. For the reasons that follow we reverse and remand this matter for further proceedings.

Plaintiff and defendant were married and had two daughters together. The parties were divorced on September 17, 1996. Their second child, C.H., has attended Syracuse University since August 2012. The education expenses associated with C.H.'s attendance at Syracuse and her continuing need for support are the focuses of this appeal.

After the parties' divorce, until August 2011, C.H. resided primarily with plaintiff. On September 21, 2011, pursuant to a motion brought by defendant, the court entered an order permitting C.H. to reside in defendant's primary custody. The motion was motivated based upon a "four-year financial plan" that was devised between defendant and C.H. in order to free defendant from his obligation to pay child support and to permit contribution to C.H.'s anticipated college expenses. The change of custody resulted in a strained relationship between plaintiff and her daughter.

After learning that C.H. intended to live with her father, plaintiff alerted the Ventnor Board of Education that C.H. was no longer living in the school district. Consequently, the Ventnor Board of Education sought tuition reimbursement for C.H.'s "ineligible attendance" in the Ventnor School District during her senior year of high school. In light of these developments, by order of September 30, 2013, the trial court amended its September 21, 2011 order to "clarify" that C.H. maintained a residence at plaintiff's home during the school year, "and was properly and legally enrolled at the Atlantic City High School." The court explained in its Memorandum of Decision accompanying the September 30, 2013 order

My order of September 21, 2011 was not intended to disqualify the child from finishing her senior year at Atlantic City High School. The child still had a residence at her mother's. So that the record is clear, [plaintiff] continues as a parent and guardian of C.H. despite [defendant's] parent of primary residence status.

In July 2012, defendant filed a motion seeking an order determining a proportionate share of college contribution from plaintiff as well as an appropriate support contribution from plaintiff for those support needs that were not covered by her attendance at college. In August 2012, the court entered an order directing plaintiff to pay to defendant $125 per week in child support effective July 11, 2012. Thereafter, plaintiff filed a motion for reconsideration. The motion was denied in October 2012. Plaintiff filed a notice of appeal. During the pendency of the appeal, a consent order was entered into by the parties. Pursuant to the order, the matter was remanded to the trial judge for the purpose of making findings of facts and conclusions of law.

A plenary hearing took place on August 16, 2013. During the course of the hearing, both plaintiff and defendant testified. C.H. did not participate in the hearing, nor were any other documents filed in support of defendant's motion.

On September 30, 2013, the motion judge issued a decision and accompanying order requiring plaintiff to pay $103 per week plus $27 in arrears for child support effective July 11, 2012. As a result of the order, plaintiff returns on appeal arguing that the judge's decision was not supported by adequate, substantial and credible evidence. Plaintiff argues that the judge erred in requiring her to contribute to college expenses by improperly evaluating the Newburgh factors.

An appellate court is required to defer to the Family Court's fact-finding because of the court's "special expertise" in family matters and the court's "superior ability to gauge the credibility of the witnesses who testify before it[.]" N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); see also Cesare v. Cesare, 154 N.J. 394, 413 (1998). We also "accord great deference to discretionary decision of Family Part judges." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012). However, no special deference is owed to the trial judge's "interpretation of the law and the legal consequences that flow from established facts[.]" Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995). If the court disregards applicable standards, we are compelled to reverse and remand for further proceedings.

The trial court has "substantial discretion" in deciding the issue of contribution to college expenses. Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012); see also Pascale v. Pascale, 140 N.J. 583, 594-95 (1995). "'If consistent with the law, [the] award will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice.'" Jacoby, supra, 427 N.J. Super. at 116 (quoting Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 2001)). If the "court ignores applicable standards, we are compelled to reverse and remand for further proceedings." Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008).

In Newburgh, our Supreme Court provided a framework for evaluating parental contribution toward a child's post-secondary education and instructed courts to

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.]

The judge "has 'an obligation under Newburgh and N.J.S.A. 2A:34-23(a), to consider all the enumerated factors.'" Gotlib, supra, 399 N.J. Super. at 309 (quoting Raynor v. Raynor, 319 N.J. Super. 591, 617 (App. Div. 1999)).

It is well-established that a child over age eighteen enrolled in a full-time educational program requires continued support. See Gac v. Gac, 186 N.J. 535, 542 (2006) (indicating "[t]he Legislature and our courts have long recognized a child's need for higher education and that this need is a proper consideration in determining a parent's child support obligation").

Here, we do not take issue with the scope of the judge's analysis in reaching his determination. The judge made findings as to each of the Newburgh factors. Rather, we part ways with the judge's factual findings relative to his consideration of a student loan and "unreimbursed costs" in the calculus. We also find the judge's determination to impute income to the plaintiff was flawed.

The record developed during the course of the plenary hearing, more particularly the Bursar statements from Syracuse University for the years 2012 and 2013, evidence that the costs of C.H.'s education are covered through scholarship, grants and loans. The judge considered, for the purpose of attributing a support obligation to plaintiff, that there existed a student loan in the amount of $8,218, which the judge viewed as an out-of-pocket expense for defendant. While it is without dispute that defendant co-signed this loan, it is also without dispute that C.H. is the borrower and is the individual principally obligated to repay the loan. Further, based upon a decision made by defendant, all principal and interest payments relating to the loan have been deferred. The defendant is not obligated to repay this loan as a "current expense" (nor may he ever be). As such, there was no basis to compel plaintiff to reimburse defendant for the loan. Similarly, the court determined that there were additional unreimbursed costs associated with C.H.'s attendance for the Fall of 2013, without a factual predicate within the record to substantiate the finding. In the absence of this predicate, no obligation for contribution may be imposed upon plaintiff.

In the judge's determination as to the Newburgh factor relative to the ability of the parent to pay the cost of education, the judge stated,

"Ms. Wildblood's (plaintiff)1 income history for the past three or four years is roughly $40,000. Although her recent income is asserted to be $23,000, her historical earning is closer to $40,000, and accordingly, I find that that is an appropriate figure at which to peg her income capability. She indicated that she has recently begun a job making $16 per hour, that is roughly $30,000 per year."

Imputation of income is a discretionary matter not capable of precise or exact determination but rather requiring a trial judge to realistically appraise capacity to earn and job availability. Tash v. Tash, 353 N.J. Super. 94, 99 (App. Div. 2002). A trial judge's decision to impute income of a specified amount will not be overturned unless the underlying findings are inconsistent with or unsupported by competent evidence. Ibid.; Rolnick v. Rolnick, 262 N.J. Super. 343, 359-60 (App. Div. 1993). Competent evidence includes data on prevailing wages from sources subject to judicial notice. N.J.R.E. 201; Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2635 (2015) (discussing imputation based on data reported by the New Jersey Department of Labor where child support is at issue.)

In applying these standards, we conclude that plaintiff established both her relocation and her employment choices were reasonable. In October 2012, plaintiff relocated to Florida for the purpose of residing in proximity to her elderly parents. She also was able to continue employment in her profession. Plaintiff is presently employed as a Licensed Practical Nurse (LPN) at a hospital located in St. Augustine.2 Plaintiff's employment within her profession presents a marked contrast to one who shifts careers or who makes a lifestyle change without rational reason. See Storey v. Storey, 373 N.J. Super. 464 (App. Div. 2004). We find that plaintiff is working at capacity in employment consistent with her skills and experience and is not voluntarily under-employed. We conclude, therefore, the imputation of income to plaintiff in the amount determined by the motion judge for the purpose of setting her contribution was erroneous.

Finally, plaintiff relies on the trial court's conclusion that C.H. maintained a residence at her home in seeking a child support credit for the 2011-12 school year in the amount of half of the weekly child support defendant had been paying prior to C.H.'s change in residence. Plaintiff's argument is without merit as the record does not support a finding that C.H. resided with plaintiff for any significant period of time during her senior year.

In summary, we remand to the trial court to reconsider plaintiff's contribution to college expenses and the child support award. If there are indeed no unreimbursed costs after deducting the $8,218 loan amount, then the court shall enter an order vacating any contribution from plaintiff. The court must also reconsider the child support award without imputing income to plaintiff and without using the child support guidelines.

The computation of child support cannot be made in a vacuum as there is a close relationship between college cost and support: the higher the child support order the less money remains available to contribute to college expenses. It also may be more appropriate for a parent to provide direct payments to the student for some of the child's support needs rather than to the other parent. The fact sensitive nature of each of these determinations explains why the Guidelines are ill-suited to make such a support calculation.

[Jacoby, supra, 427 N.J. Super. at 122.]

Reversed and remanded. We do not retain jurisdiction.

1 Kathleen Haymaker is now known as "Kathleen Wildblood."

2 The court, in reaching its determination, erroneously considered plaintiff to have been previously employed as a Registered Nurse (RN). We note, as reported by the New Jersey Department of Labor, that an RN earns income at a higher rate than an LPN.