STEPHEN M. LEOTSAKOS v. LOUISE A. LEOTSAKOS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1838-06T51838-06T5

STEPHEN M. LEOTSAKOS,

Plaintiff-Respondent,

v.

LOUISE A. LEOTSAKOS,

Defendant-Appellant.

 

Submitted July 3, 2007 - Decided

 
Before Judges Axelrad and Winkelstein.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-957-99A.

Lesnevich & Marzano-Lesnevich, attorneys for appellant (Madeline Marzano-Lesnevich, of counsel; Scott Adam Laterra, on the brief).

Kaplan & Bookbinder, attorneys for respondent (David Bookbinder, on the brief).

PER CURIAM

Defendant, Louise Leotsakos, seeks relief from the Family Part's October 27, 2006 order that denied her motion to enforce the parties' Interspousal Agreement (Agreement) as it pertains to plaintiff's obligation to have his pension evaluated and to contribute to the college education costs of the parties' son, Kyle. In his responsive brief, plaintiff has agreed to have the pension evaluated and the appropriate Qualified Domestic Relations Order prepared in accordance with the terms of the Agreement. That issue is therefore moot.

The primary issue remaining is whether the trial court erred by excusing plaintiff from complying with the terms of the Agreement that obligated him to contribute to Kyle's college expenses. A secondary issue is whether plaintiff should be required to reimburse Kyle for a $10,000 student loan that Kyle incurred to attend Rider University in Lawrenceville. We affirm that portion of the Family Part's order that denied defendant's motion to require plaintiff to reimburse Kyle for the $10,000 loan, but reverse that portion of the order that relieved plaintiff of his obligation to pay for Kyle's college expenses.

The parties were married on February 4, 1982, and had two children: Michael, born on September 9, 1982; and Kyle, born on August 13, 1984. The court entered a dual judgment of divorce on June 22, 1999, which incorporated the Agreement by reference. Defendant was awarded custody of the children. The Agreement's provision regarding child support addresses plaintiff's obligation to contribute to college costs for the children. Specifically, it provides:

It is recognized and acknowledged by and between the parties that the children are presently attending expensive private schools. Kyle attends Peddie and [Michael attends] Lakewood Prep. The parties agree that the husband shall pay the tuition for said private schools and colleges of their choice. It is acknowledged, agreed and understood that so long as the children are attending said private schools and colleges, and husband pays his liability for said schooling, wife shall not seek any child support or alimony contributions from husband, but she specifically agrees to suspend her rights and claims during said time of school attendance. It is further agreed and understood that, so long as husband continues to work full time for the Star Ledger, and if wife makes a claim and application for child support and/or alimony in the future, that any application will be limited to husband's income from his job at the Star Ledger and no other income will be utilized in calculating any child support and/or alimony obligation husband may have to the wife. In the event husband ceases employment with Star Ledger, other sources of income may be utilized for payment of alimony, as per attached schedule. Husband shall contribute for college tuition, room and board, and other college expenses, after giving credit for all grants, aid, loans, scholarships, and earnings of the child.

The Agreement also calls for plaintiff to pay alimony to defendant, for four years, in the amount of $1000 per month; the obligation was deferred until June 2006. At the time of the divorce, defendant earned between $40,000 and $50,000 per year; plaintiff earned in excess of $100,000 per year.

Post-judgment, plaintiff appears to have admitted to manipulating defendant into agreeing to the terms of the Agreement. In a letter signed by both parties and notarized on July 30, 2002, plaintiff stated: "I also admit that I manipulated [defendant] into agreeing to terms of the interspousal agreement that she would not have agreed to if not under such emotional/financial stress."

Kyle attended Rider for approximately a year and a half, from 2002 through 2004. While there, he maintained a 2.9 grade point average, but apparently stopped attending in 2004 after getting a job and regularly working thirty hours a week. He asserts that his father urged him to work while in college, which caused his school work to suffer and eventually led him to drop out of school. Since leaving Rider, he has held a full-time job. He has been accepted at the Methodist College in Fayetteville, North Carolina, where college costs are approximately $23,000 per year.

In denying defendant's motion to enforce the Agreement to require plaintiff to pay for Kyle's tuition at Methodist College, the trial court made the following findings:

There is really no formula that a court can apply on the issue of the enforcement or non enforcement of a provision in an interspousal or in a property settlement agreement . . . as it relates to the college obligation.

It involves a variety of factors. You have to take a look at the history of, in this case, the son Kyle from the time that he graduated from high school. Did he proceed to a stance leading to an undergraduate degree? We know that he did.

Obviously, that did not work out. And we also know that for a period of almost . . . two and a half years he has been employed with Aetna. The question then becomes whether given the age, given the attempt at college, given the employment for a period of at least two and half years, . . . and I think it is the case law that you have to take a look at, . . . [whether] the son Kyle would be looked at as emancipated. You've got to start with that proposition.

Now, why do I start with the idea of emancipation? You always begin with age. But it goes without saying that age by itself is not the determinative factor. . . .

. . . He did a year and a half. He left school. That's another factor. The fact that he suspended the effort to continue.

He then spends two and a half years working full time and now says that he has a desire to return to school. And I will accept that he has been admitted to Methodist College. . . .

. . . .

So, I look at the factors and I am not in agreement that here the hiatus is not something that should be discounted. In fact, I think it's the hiatus more than anything else that leads me to conclude that there should not be a parental responsibility visited on the plaintiff to be responsible for Kyle's higher education.

It's the period of time. It's the year and a half at Rider, fine. Then you have a period of two and a half years where the child, you can't really refer to him as a child, that [the] son has been working full time. Has he moved out of the sphere of influence and it's the sphere of influence cases that I think really govern here. And when you look at that, for that period of time, he has moved out of the sphere of influence of both parents. And he might have been living at home, but in terms of the way he led his life, he was living as somebody who was self sufficient. And it's that self sufficiency that I'm satisfied is the efficient factor why the biological father should not be responsible for his education and I will not order him to do so.

Appellate courts should give substantial deference to the trial judge's findings of fact, as long as those findings are supported by substantial, credible evidence. Pascale v. Pascale, 113 N.J. 20, 33 (1988). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Nonetheless, strong public policy requires that "'fair and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed.'" Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999) (quoting Smith v. Smith, 72 N.J. 350, 358 (1977)).

Determining the contributions of divorcing parents to the college expenses of a child of the marriage reflects multiple factors. Newburgh v. Arrigo, 88 N.J. 529, 545 (1982). The decision must be "reasonable under the circumstances" and the standard of review is whether the trial court abused its discretion. Finger v. Zenn, 335 N.J. Super. 438, 445-46 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001).

Here, we conclude that the trial court misapplied its discretion by relieving plaintiff of his obligation to comply with the terms of the Agreement as it pertained to payment of Kyle's college costs. The court concluded, without the benefit of a plenary hearing, that Kyle had moved beyond the sphere of influence and responsibility exercised by his parents, and obtained independent status on his own. See Dolce v. Dolce, 383 N.J. Super. 1, 17-18 (App. Div. 2006); Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995). In other words, the judge found that the two-year delay between Kyle's dropping out of Rider and wanting to return to college, during which time Kyle was gainfully employed, relieved plaintiff of his obligation to pay Kyle's college costs. We disagree.

The Agreement makes plaintiff responsible for Kyle's college costs. The Agreement is enforceable as long as it is fair and equitable. See Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). That Kyle has been out of school and working for two years, does not, in itself, relieve plaintiff of his bargained-for agreement to pay the cost of Kyle's education. The Agreement does not condition plaintiff's obligation on Kyle's continuous, uninterrupted college attendance. We take judicial notice that it is not uncommon in today's society for young people to start college, take a break, and then return to complete their education at a later date. At the very least, the court should have analyzed the Newburgh factors as they applied to the parties' circumstances before effectively negating a material provision of the Agreement.

Under the circumstances here, defendant has a reasonable argument that no equitable basis exists to relieve plaintiff of his obligation to comply with the Agreement. Indeed, Kyle has indicated that he left school because he was overburdened with a job he undertook at his father's urging. The surrounding circumstances create disputed material issues of fact that require a plenary hearing. Cf. Tretola v. Tretola, 389 N.J. Super. 15, 20-21 (App. Div. 2006) (judge erred in determining intent of parties without plenary hearing).

To terminate plaintiff's obligation on the current record would simply not be equitable. The facts do not, without more, support the court's conclusion that Kyle is emancipated. See Keegan v. Keegan, 326 N.J. Super. 289, 294-96 (App. Div. 1999) (affirming trial judge's determination not to emancipate student who had been full-time employee on hiatus from college); Sakovitis v. Sakovitis, 178 N.J. Super. 623, 628 (Ch. Div. 1981) (parent may be required to contribute financially to college education of child who has reached majority). Consequently, we reverse the order relieving plaintiff of his obligation to pay for Kyle's college costs and remand to the trial court for a plenary hearing. The judge must analyze the Newburgh factors as they apply to these parties, give due consideration to the bargained-for property settlement agreement, and reach a result that is consistent with Kyle's best interests.

Finally, we address defendant's request that her son be reimbursed the $10,000 loan he incurred when attending Rider. We affirm that portion of the trial court's determination. The Agreement specifically requires that plaintiff be given credit for "all grants, aid, loans, scholarships, and earnings of the child."

Affirmed in part, reversed in part, and remanded.

 

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A-1838-06T5

July 20, 2007