DAWN POWELL v. JASPER ROWE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DAWN POWELL,

Plaintiff-Appellant,

v.

JASPER ROWE,

Defendant-Respondent.

__________________________________

October 19, 2016

Submitted October 5, 2016 Decided

Before Judges Sabatino and Haas.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FD-04-2710-09.

Law Offices of Jef Henninger, attorney for appellant (Morgan L. Rice, on the briefs).

Polonsky & Polonsky, attorneys for respondent (Rita S. Polonsky, on the brief).

PER CURIAM

Plaintiff Dawn Powell appeals the Family Part's April 30, 2015 order denying her motion to compel defendant Jasper Rowe to pay a portion of the college costs incurred by their now-emancipated daughter. For the reasons that follow, we affirm.

The parties, who were never married, have one child together, born in August 1991. Plaintiff has been the parent of primary residence. For years the parties dealt with the child's financial needs in an informal and private manner. Plaintiff obtained for the first time a court order for child support in June 2009, while the child was a senior in high school. That order required defendant to pay $142 weekly in child support, a total of $7,384 annually.

After the child graduated from high school in 2009, she enrolled that fall at Hampton University in Virginia. Four years later she obtained a bachelor's degree from Hampton in 2013. She then entered into a master's program at Columbia College in Illinois, where she graduated in the fall of 2014.

Neither plaintiff nor the child moved to have defendant contribute to any of the child's higher educational expenses before or while they were incurred. In the meantime, plaintiff individually took out two separate Parent Plus loans for the child's education totaling $105,412. Defendant continued to pay plaintiff the court-ordered child support, even though the child was by that point attending college, and then her graduate school, out of state.

After the child finished graduate school, the parties entered into a consent order on January 30, 2015, emancipating the child. The agreed-upon effective date of the emancipation was January 1, 2015.

The present appeal relates to plaintiff's motion, which she filed on January 28, 2015 two days before the emancipation consent order was entered. The motion sought to have defendant contribute towards the over $100,000 in student loans for the child that plaintiff had borrowed. After considering the parties' motion submissions and oral argument, the Family Part judge denied the application in an oral decision on April 30, 2015. In essence, the motion judge principally determined that plaintiff had filed the motion far too late, years after the child had already incurred her five years of undergraduate and graduate expenses.

On appeal, plaintiff now argues that the trial court erred in denying her motion. She urges that the matter be remanded for a plenary comprehensive application of the twelve factors for parental college contribution recited in Newburgh v. Arrigo, 88 N.J. 529 (1982). We disagree.

As a general matter, a reviewing court will accept the Family Part's determination regarding whether and to what extent a parent has an obligation for paying for a child's educational expenses, "provided the factual findings are supported by substantial credible evidence in the record and the judge has not abused his or her discretion." Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 588 (App. Div. 2016) (citing Gac v. Gac, 186 N.J. 535, 547 (2006)) (holding that the trial court had correctly enforced the initial property settlement agreement instead of the Newburgh factors in denying an application to reduce a noncustodial parent's college tuition obligation). In addition, we customarily accord substantial deference to the determinations of Family Part judges, see Cesare v. Cesare, 154 N.J. 394, 413 (1998). We review de novo, however, the trial court's "interpretation of the law and the legal consequences that flow from established facts[.]" Manalapan Realty, L.P. v. Twp. Comm. of the Twp. of Manalapan, 140 N.J. 366, 378 (1995).

In Newburgh, supra, 88 N.J. at 543, the Supreme Court recognized that in some circumstances a parent may have a duty to bear a portion of the education expenses of his or her child who has reached the majority age of eighteen. The Court delineated twelve factors in Newburgh that customarily bear on that assessment. Id. at 545. Those so-called "Newburgh factors" focus on, among other things, the respective financial resources of the child and the parents, their relationships, their expectations regarding higher education, and the availability of financial aid and student loans. Ibid. These factors can apply not only to the child's undergraduate studies but also to any graduate or professional schooling pursued by the child. Id. at 544. The Legislature subsequently amended the child support statute to align with the factors the Court enumerated in Newburgh. See N.J.S.A. 2A:34-23(a).

In its later opinion in Gac, supra, 186 N.J. at 547, the Court made clear that a key consideration in resolving such disputes is whether the noncustodial parent played a significant role in the child's college or post-college decision-making, before or as the tuition and other schooling-related expenses accrued. Depending upon the circumstances, a parent's appropriate contribution level could be zero, as it was determined to be in Gac, where the defendant father had no meaningful role in his daughter's life and was excluded from her college-selection process. Ibid.

Notably, the Court in Gac instructed that a parent seeking another parent's contribution towards their child's higher education expenses should move before the Family Part to obtain such relief before the expenses are actually incurred. Id. at 546. The Court twice declared in its opinion that a failure to do so will "weigh heavily" against the grant of the application. See Gac, 186 N.J. at 546-47.

Here, there is no indication that plaintiff or the child did anything to raise the issue of defendant's contribution until January 2015, after the child had already completed five years of undergraduate and graduate education, and over $100,000 in loan indebtedness had been accumulated. Defendant had no contemporaneous participation in the child's decision-making process. The record shows that defendant and the daughter seldom communicated, and he was largely unaware of her educational plans. The daughter did not consult with him about her college finances, nor was any adjustment of his child-support level sought while she was attending school. Although defendant did attend the daughter's college graduation party, the most he knew at that time, even according to the daughter, was that she might be attending graduate school thereafter in Chicago.

In effect, the debt for the child's college expenses was essentially presented to defendant here as a fait accompli. In the meantime, defendant continued to pay plaintiff over $7,000 annually in child support, a level that may well have been reduced had he been asked and required to contribute to the child's educational expenses while she was in school.

Although the motion judge overstated the precepts of Gac when he indicated in his decision that retroactive requests for reimbursement are procedurally barred per se, the denial of plaintiff's motion was nevertheless justified in light of the record as a whole and the applicable law. An order will be affirmed on appeal if it is correct, even if we do not adopt the specific reasoning of the trial judge. State v. McLaughlin, 205 N.J. 185, 195 (2011) (citing Isko v. Planning Bd. of the Twp. of Livingston, 51 N.J. 162, 175 (1968)).

The belated effort by plaintiff to compel defendant to contribute to the child's educational expenses, which date back as far as 2009, without sufficient countervailing reasons to justify that delay, "weighs heavily" in favor of the denial of the 2015 motion. Gac, supra, 186 N.J. at 546-47. Although we note our due regard to the child's academic achievement, there is no need in this case to remand this matter for a hearing to parse through in more detail the Newburgh factors. None of them individually or collectively would be realistically likely to lead to a different outcome.1 We discern no practical reason in this situation to impose upon the parties the burden of a remand proceeding and the attendant legal expenses.

Affirmed.

1 We do not rest on the motion judge's additional observation that reimbursement from defendant was barred by N.J.S.A. 2A:17-56.23a, the so-called "anti-retroactivity" statute. Plaintiff correctly points out that statute only proscribes retroactive modifications to decrease a child support order, and does not foreclose orders to retroactively increase support. See Keegan v. Keegan, 326 N.J. Super. 289, 291 (App. Div. 1999).