CHRISTOPHER D. WINANS v. KATHY ANN FINCH WINANS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0578-05T20578-05T2

CHRISTOPHER D. WINANS,

Plaintiff-Appellant,

v.

KATHY ANN FINCH WINANS,

Defendant-Respondent.

___________________________

 

Argued January 31, 2007 - Decided

Before Judges Collester and Sabatino.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Hunterdon

County, FM-10-91-95.

Dennis W. Winegar argued the cause for appellant

(Winegar, Wilhelm, Glynn & Roemersma, attorneys;

Steven J. Karch, on the brief).

Salvatore P. DiFazio argued the cause for

respondent (Law Office of S.P. DiFazio, attorneys; Renee Kilgarriff, on the brief).

PER CURIAM

This appeal presents again the issue of whether a parent is obliged to contribute to the college education of a child who is alienated from the parent. Plaintiff Christopher D. Winans and Kathy Ann Finch-Winans were divorced on February 21, 1995. Two children were born of the marriage: Benjamin, now emancipated, and Spencer, born October 20, 1986, who is the subject of this appeal. By the terms of a property settlement agreement (PSA) incorporated into the judgment of divorce (JOD), plaintiff was awarded custody of the two children because of defendant's mental illness. She was not required to pay child support while unemployed. Because plaintiff assumed custody and was the sole support of the children, he was to retain all the equity in the martial home after defendant conveyed her interest to him. Plaintiff agreed to pay $300 per week as alimony to defendant while granting him discretion to require defendant to enroll in any government program including social security disability that would reduce his obligation to her. The PSA dealt with the children's college expenses in the following manner:

In the event that either of the children does attend and undergraduate college, the parties agree to contribute to such education for a four-year continuous period which can be extended up to one semester solely because of illness or disability to the extent of tuition, books, school fees, on campus room and board, applications for admissions and graduation fees to the extent of their then existing ability, after deduction for any of available scholarships, grants, work study monies, loans or other emoluments to which each child may be entitled.

Neither party shall be obliged to contribute to graduate school education.

Another PSA provision rendered its terms irrevocable:

The within Agreement is IRREVOCABLE and contains the entire understanding of the parties and cannot be changed orally.

About a month after the entry of the divorce judgment, plaintiff remarried. His second wife (Laurie) had two children, a son and a daughter. Sadly, the daughter struggled with cancer and died. Later plaintiff and Laurie adopted a girl. The relationship between plaintiff's two sons and Laurie was rocky from the start. Spencer claims that Laurie was a "control freak," was verbally and physically abusive, and treated him and Ben as "second-class citizens" in their own home. However, plaintiff says the accusations were untrue and that it was Ben and later Spencer who were verbally abusive to both Laurie and himself. Plaintiff said that Ben was a behavioral problem. He was suspended from high school, had various "scrapes with the law," and used both drugs and alcohol. He was belligerent to plaintiff and Laurie, at one point threatening to burn down the house. Plaintiff had Ben evaluated by a psychiatrist and subsequently enrolled him in a residential treatment program in far away Spokane.

After Ben left, the relationship between fourteen-year-old Spencer with his father and stepmother became worse. Plaintiff said that he became hostile to all the members of the household including his stepbrother and stepsister. Spencer claimed that Laurie physically abused him and that his father did nothing about it.

In 2000, Spencer and his father agreed that he would attend the Fishburne Military Academy. While plaintiff asserts Spencer wanted to go away to military school, Spencer says that he agreed only because he was afraid to be at home with his step-mother. He also felt that his father was sending him away just as he had his brother to get him out of the home to satisfy Laurie. Spencer said that Fishburne was a school for troubled children, and he hated it. After he completed the eighth and ninth grades at Fishburne, he did not want to return. Because his problems at the home with his stepmother did not improve, it was agreed that he would go to another private boarding school, the Hill School in Pennsylvania.

Plaintiff has another version of the events leading to Spencer's transfer to the Hill School. He said that he told Spencer that he would not enroll Spencer in the Hill School because it was too expensive at $30,000 per year. He said Spencer was "devastated" and did not want to return to Fishburne. Plaintiff said at this time he had an argument with sixteen-year-old Spencer, who made "an informed choice" that if his father paid for the Hill School, Spencer would pay for his own college education. Spencer denies making any such agreement.

Spencer attended the Hill School, but he did not return to live at home. Rather he stayed with Mr. and Mrs. DiFazio, parents of one of his friends, on school recesses and the summer. It was made clear that he was not welcome in his father's home. After Mr. DiFazio perished in the World Trade Center disaster of September 11, 2001, Mrs. DiFazio expressed reservations about Spencer spending the summer since she had three other adolescents at home. Spencer then spent his time during school recesses with Charles and Linda Bachman and their children, where he remains to this date. Plaintiff agreed to pay the Bachmans $800 a month for Spencer to remain at their home. Spencer stayed with the Bachmans through his high school graduation, to which he did not invite his father.

During Spencer's senior year Charles Bachman agreed to act on Spencer's behalf to discuss the issue of college with plaintiff. In their first phone conversation plaintiff said that he would not pay anything for Spencer's college because he wanted him to experience the "character building value of working one's way through college." In the second conversation plaintiff proposed contributing $10,000 per year as well as continuing to pay the Bachmans $800 a month. Although Spencer's choice was Northeastern, plaintiff refused to give him "a blank check" and restricted the college to Rutgers. Plaintiff explained to Bachman that he borrowed money for each year of Spencer's private high schools, and that $10,000 per year for college was a stretch. When Bachman disagreed, plaintiff threatened to remove Spencer from the Bachman home and the Hill School.

Spencer certified that he was accepted at Northeastern which cost about $40,000 per year. He said he was willing to pay a portion of his college expenses. He took a Stafford loan in the maximum amount of $2,546, worked during the summer to save $2,000 for spending money and another $1,000 toward a required computer. Spencer also said that because of his father's income and the fact that he still reported him as a dependent, he could not obtain another college loan unless plaintiff co-signed, which plaintiff refused to do.

As a result of the impasse, Spencer's mother, defendant Finch-Winans, filed a post-divorce application in aid of litigant's rights on January 5, 2005, to compel plaintiff to pay for Spencer's college education pursuant to the PSA and JOD or to fix a date for a plenary hearing on the issue of each party's ability to pay. The motion was adjourned because the parties engaged in settlement negotiations. According to the Bachmans, plaintiff claimed he did not have enough money to pay for all of Spencer's private college education, and it was on that basis that an agreement was reached for plaintiff to be responsible for eighty percent of the tuition, room and board, and book expenses secured by a life insurance policy with Spencer responsible for the remaining twenty percent through financial aid and part-time employment. A consent order was prepared by plaintiff's counsel in February 2005, which was signed by plaintiff and sent to Spencer and his mother for signature. Various changes were made, and plaintiff signed the consent order again in March. However, before defendant and Spencer signed the consent order, the Bachmans received a letter denying Spencer financial aid because his father's income for the prior year was $400,000, which would indicate his clear ability to pay all college expenses. Defendant and Spencer refused to sign the consent order, and on May 11, 2005, defendant re-filed her motion in aid of litigant's rights to compel plaintiff to pay for Spencer's college.

Plaintiff filed a cross-motion stating that defendant, Spencer, and his representatives clearly understood that prior to the agreement in the consent order, plaintiff made over $400,000, that he still listed Spencer as a dependent on his tax forms, and that he refused to co-sign any loans for Spencer. He sought enforcement of the negotiated but unsigned consent order or a direction that plaintiff has no affirmative obligation to contribute to Spencer's college related expenses.

On August 26, 2005, Judge Rubin entered an order rejecting plaintiff's request to enforce the unsigned consent agreement and denying him a hearing as to whether an oral agreement had been reached which was set forth in the proposed consent order. Judge Rubin denied plaintiff's cross-motion on grounds that only a written agreement changing the terms of the PSA or JOD could change the obligation to contribute to college pursuant to the PSA which remained in force and that the level of the obligation was to be determined by that and the factors listed by the court in Newburgh v. Arrigo, 88 N.J. 529 (1982).

Judge Rubin found that plaintiff had the clear capacity to pay the total amount of Spencer's obligation at Northeastern University subtracted only by available financial aid to his son. The court also analyzed the Newburgh factors and found that the negative factor of the poor relationship between father and son was insufficient to outweigh remaining factors in the context of Spencer's academic commitment and plaintiff's ability to pay. He further found that defendant was financially incapable of making any contribution to college costs. Furthermore, the court held that under the language of the agreement in the judgment of divorce, Spencer was not required to seek outside work or to incur any debt other than "available scholarships, grants, work study monies, loans or other emoluments to which [Spencer] may be entitled." The court stated:

Therefore, as between plaintiff and his son's respective contribution Spencer's contribution was limited by the parties themselves to the "available . . . emoluments to which [Spencer] may be entitled, and plaintiff's contribution is limited only by his ability to pay...

Spencer shall continue to apply yearly for all available financial aid including school loans and other items listed in the parties' agreement.

Finally, the court concluded that

In the absence of any application by the plaintiff to change the level of $800 per month support that plaintiff has been paying for Spencer's support since February 2004, that amount shall continue to be paid by the plaintiff in the same manner as has been the case until now.

Plaintiff argues on appeal that the trial judge erred in denying his request to enforce the oral agreement, that it was error to deny a hearing on that issue, that the judge did not properly weigh the factors of Newburgh, and that there was no basis for the order directing him to continue to pay the $800 per month.

We agree with plaintiff that, in general, if an agreement is reached upon all essential terms of a contract, the parties effectively bind themselves even though they intend to incorporate that agreement into a formal document. Pascarella v. Bruck, 190 N.J. Super. 118 (App. Div. 1983). In Harrington v. Harrington, 281 N.J. Super. 39 (App. Div. 1995), we stated that "matrimonial agreements, as any other agreements, need not necessarily be reduced to writing or placed on the record." Id. at 46. However, the PSA incorporated in the JOD unequivocally states:

The within agreement is IRREVOCABLE and contains the understanding of the parties and cannot be changed orally.

[Emphasis supplied.]

Plaintiff next argues that the PSA language requiring any changes to the "entire understanding of the parties" was misapplied by the trial judge. He contends that the executed PSA provided that the parties agreed to contribute toward undergraduate education, and that the agreement in the proposed consent order made no change to their "entire understanding," but only allocated the extent of plaintiff's responsibility. We disagree. The PSA provision as to college expenses sets forth an agreement of the parties to contribute "to the extent of their existing financial ability." In this case plaintiff's income of $400,000 in 2004 and his 2005 income of over $450,000 through six months of that year, together with the assets and liabilities set forth on his CIS form, clearly demonstrate an ability to pay Spencer's entire college obligation. In contrast, the record discloses that defendant suffers from paranoid schizophrenia and lives in Easter Seals housing. She certifies without contradiction that her income is $320 per week, and orders in plaintiff's appendix indicate that she no longer receives alimony. While plaintiff correctly points out that defendant did not supply a CIS, the vast disparity in the income and assets of the parties is tacitly admitted. Therefore, we agree with the motion judge that there was no viable amendment or modification of the PSA and that the unrefuted facts substantiate the clear ability on plaintiff's part to pay for his son's college education while defendant is clearly unable to contribute anything.

Plaintiff next contends that the judge did not adequately weigh all the facts of Newburgh when he concluded that plaintiff has an affirmative obligation to pay his son's college-related expenses. In Newburgh the Supreme Court restated the obvious proposition that a college education is more than a luxury for the elite by holding that "financially capable parents should contribute to the higher education of children who are qualified students," but not all parents must contribute to a child's college expenses. Newburgh, supra, 88 N.J. at 544. In order to assess a claim for college contribution, the Supreme Court set forth a list of twelve factors for consideration when determining contributions by a parent:

(1) Whether the parent, if still living with the child, would have contributed toward the cost of the requested higher education;

(2) The effect of the background, value 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.

[Id. at 545.]

Six years after Newburgh the Legislature essentially adopted the same criteria when amending the child support statute. N.J.S.A. 2A:34-23(a).

In assessing the Newburgh factors Judge Rubin found: (1) defendant would contribute to his son's education had this remained a healthy and surviving intact family and that there would have been no viable claim that it was not affordable; (2) plaintiff's background, values and goals are consistent with his son having a college education. The court noted that whiile plaintiff asserted his preference toward a state school or Spencer "building character" by paying his own way, this was a factor as to the kind and cost of college as opposed to plaintiff's values and goals; (3), (9), and (10) relate to the amount of contribution sought, the ability of the child to earn income and the availability of financial aid. Judge Rubin rejected plaintiff's contention that his contribution should be capped at a maximum of $30,000 (the amount set forth in the unexecuted agreement) because he attended a state school and Spencer picked a private school over Rutgers. Relying on Finger v. Zen, 335 N.J. Super. 438 (App. Div. 2000), cert. denied, 167 N.J. 633 (2001), the judge noted that absent any agreement to the contrary, a parent can be compelled to contribute to the cost of a college education at a private institution absent an agreement to the contrary. With regard to the ability of Spencer to earn income, Judge Rubin reiterated that despite plaintiff's claims that he wanted Spencer to work his way through college, the PSA required only that he obtain college grants and loans so that Newburgh factor (9) is inapplicable. However, financial aid in the form of college grants and loans was specified in the PSA, and the court required Spencer to access all information respecting financial aid and appropriate applications to alleviate some of the cost of his education.

Regarding Newburgh factors (4) and (6), i.e., the ability to pay and the financial resources of the parents, Judge Rubin found no satisfactory explanation why plaintiff could not encumber himself for all college contributions exceeding the $30,000 he proposed based on his salary, stocks, bonds, and other resources. As to defendant, Judge Rubin found that the parties agreed that defendant has been emotionally handicapped for a long period and that her earnings are marginal, leaving her without the functional ability to pay for college. He therefore refused to consider her $20,000 gross income.

The main thrust of plaintiff's attack on Judge Rubin's Newburgh findings is that he gave insufficient weight to factor (11). He asserts that the acrimonious relationship with Spencer is irreconcilable and so hostile that he should not be compelled to pay for his college education. Clearly there is a wide gulf between father and son. They cannot live together or communicate in a way consistent with a decent father/son relationship. But factor (11) requiring the court to consider "the child's relationship to the paying parent, including mutual affection and shared goals as responsiveness to parental advice and guidance" is not solely determinative. While it is a factor, there must be a fair balancing of all Newburgh factors to determine whether a parent should contribute and, if so, the extent of that obligation. In Gac v. Gac, 185 N.J. 535 (2006), our Supreme Court stated:

A relationship between a non-custodial parent and a child is not required for the custodial parent or the child to ask the non-custodial parent for financial assistance to defray college expenses.

[Id. at 546.]

In Gac it was held that the former husband was not required to contribute toward his daughter's college education and expenses when neither the custodial parent nor the child made a request for financial assistance prior to selection of a college and, in fact, only made the request after she had graduated from college and her father sought to terminate child support. The court stated:

Obviously, the factors set forth in Newburgh and reaffirmed today contemplate that a parent or child seeking contribution toward the expenses of a higher education will make the request before the educational expenses are incurred. As soon as practical, the parent of the child should communicate with the other parent concerning the many issues inherent in selecting a college. At a minimum, a parent or child seeking contribution should initiate the application to the court before the expenses are incurred. The failure to do so will weigh heavily against the grant of a future application.

[Id. at 546-47.]

Therefore, plaintiff's reliance on Gac is misguided. The decision was not based solely upon an acrimonious relationship between parent and child, but upon the specific conduct of the daughter and the former spouse in totally ignoring the father in the choice and cost of college and simply presented the bill. Here Spencer did the opposite. He and his representatives discussed the selection of college as well as the cost and entered into negotiations prior to placing the issue before the judge.

Furthermore, the plaintiff's reliance upon a claimed agreement that Spencer would not seek any college contribution if plaintiff paid for the Hill School is without merit. Aside from Spencer's denial of any agreement, it could not be enforced in any event since Spencer was a minor, the PSA forbade any oral agreement of modification, and a parent has no right to waive child support obligations. See Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993).

Similarly, Moss v. Nedas, 289 N.J. Super. 352 (App. Div. 1996) is distinguishable, for in that case the Family Court judge stated on more than one occasion that the custodial parent and her daughter completely ignored the court's orders that they were obliged to have meaningful communication with the father concerning the daughter's education as a quid pro quo for requiring the father to make future college contributions. The daughter transferred from Sara Lawrence to Skidmore and back again without advising her father, and he received no significant information whatsoever about her performance and progress. The Family Court judge found that since the mother and daughter had treated the father simply "as a wallet" and failed to follow the orders of the court, the father was relieved of any further financial responsibility for his daughter's college education. We affirmed, agreeing with the Family Court judge that when it no longer appears fair to direct enforcement of an agreement for payment of college, the court is free to alter the prior arrangement. Obviously no such factual pattern exists in the present case.

Plaintiff next seeks a plenary hearing on the factual issue as to whether the plaintiff or Spencer was the architect of their alienation asserting that it is a disputed material fact to be considered in his obligation to pay for college. We cannot disagree more. A plenary hearing is required when the submissions show that there is a genuine and substantial factual dispute and that the trial judge deems a plenary hearing necessary to resolve the factual issue. Hearings are not to be casually ordered. Family Court judges must "bear in mind the costs, both financial and personal, that the litigants will incur in preparing for and participating in [plenary hearings]." Barblock v. Barblock, 383 N.J. Super. 114, 123 (App. Div. 2006). In this case we fail to see what purpose would be served by father and son trading accusations as to who is or was at fault. It will only exacerbate ill will and widen the rift between father and son, as well as drive up legal fees and waste court time. No material issue of fact exists in this case to warrant such a waste of time and money.

Finally, plaintiff appeals from the ruling by the Family Part judge that he continue payment of the $800 per month support that he has been paying since February 2004 to the Bachmans as his son's residential custodians. He states that the issue was not raised by either party and that the payments were voluntary on his part. He also notes that the amount necessary for Spencer's support will be affected by the fact that he will be residing at college during the majority of the year. Since he is a full-time college student, Spencer is not emancipated and is entitled to support absent an order to he contrary. The amount of $800 a month was fixed by plaintiff to defray Spencer's monthly support, and would not satisfy plaintiff's obligation under the child support guidelines. Obviously, an adjustment may well be in order in light of the fact that Spencer will be residing at college, and Judge Rubin's order specifically stated the following:

In the absence of any application by Plaintiff to change the level of $800 per month support that plaintiff has been paying for Spencer's support since February 2004, that amount shall continue to be paid by Plaintiff in the same manner as has been the case until now.

[Emphasis supplied.]

The fact that plaintiff has been ordered to pay Spencer's college expenses relating to tuition, books, room and board does not eliminate his child support obligation. Judge Rubin obviously addressed the matter only in order to preserve the status quo until plaintiff makes an application for modification should he so desire. We find no error in the order.

Affirmed.

(continued)

(continued)

20

A-0578-05T2

December 7, 2007