JOSEPH C. CRUDELE, JR. v. M. MARIE CRUDELE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2623-06T52623-06T5

JOSEPH C. CRUDELE, JR.,

Plaintiff-Respondent/Cross-Appellant,

v.

M. MARIE CRUDELE,

Defendant-Appellant/Cross-Respondent.

______________________________________________

 

Submitted September 25, 2007 - Decided

Before Judges Fuentes and Grall.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Gloucester County, Docket No. FM-28038-87.

David M. Lipshutz, attorney for appellant/

cross-respondent.

Szaferman, Lakind, Blumstein, Blader &

Lehmann, attorneys for respondent/cross-

appellant (Brian G. Paul, of counsel and

on the brief).

PER CURIAM

Plaintiff Joseph C. Crudele, Jr. and defendant M. Marie Crudele were married in 1974 and divorced in 1988. Their youngest child graduated from college on June 17, 2006. By order of December 8, 2006, a judge of the Family Part denied defendant's motion to compel plaintiff to contribute to their son's college expenses, granted plaintiff's cross-motion to emancipate that child and terminated plaintiff's child support obligation effective November 22, 2006, the date on which plaintiff filed his cross-motion. Defendant appeals, contending that the judge erred in entering the order without first conducting a plenary hearing to resolve disputed material facts. Plaintiff cross-appeals, claiming that the judge erred by setting the date of emancipation and termination of child support beyond the date of the child's college graduation. Because the arguments raised have merit, we vacate the order and remand for further proceedings.

The following factual statement is drawn from the certifications and documents submitted on the motion and cross-motion. The parties' final judgment of divorce incorporates their property settlement agreement. They agreed that defendant would have custody of their four children and, "[o]n all matters of importance relating to the children's health and education, [a duty to] consult and confer . . . with a view to adopting and following a harmonious policy." They agreed to "properly notify [each] other of any change [in residence], giving the address of the new place of residence."

Plaintiff agreed to pay child support in a specified amount per week, per unemancipated child. His obligation to pay support for each child was to terminate on the child's eighteenth birthday or high school graduation, whichever was later, unless the child was enrolled in college, died, married or joined the military. The weekly support obligation also was to terminate if a child attended college, "provided that [plaintiff was] paying for [the] schooling . . . ."

The parties "agree[d] to consult with a view toward adopting a harmonious policy concerning the college education of the children[,]" and they "specifically understood and

agreed . . . that both [would] have an obligation to provide for the college education of their children, taking into consideration" their "respective income and assets." They further agreed that plaintiff would "have the right to approve in advance an undergraduate college consistent with the family's means and the child's abilities" and to resolve any dispute in court.

In October 1999, plaintiff's attorney submitted a consent order emancipating the parties' third child and setting support for the youngest child, who was then seventeen years of age, at $110 per week. At that time both parties were employed by Acme. Acme deducted plaintiff's child support from his pay and added the amount to defendant's paycheck. Plaintiff no longer works for Acme.

According to defendant, the parties' youngest child attended Gloucester County College for two years, Camden County College briefly and Drexel University for three years. The child received a Bachelor's Degree in Computer Engineering on June 17, 2006. Defendant paid in excess of $50,000 for Drexel alone. Plaintiff never inquired about the child's education, and defendant "had no idea where to find him." He had not provided his address as required by their agreement, and when she tried to get it from his mother and Acme, neither cooperated. Defendant also tried to reach plaintiff at an address given to her by their daughter, but he did not respond.

While plaintiff did not claim that he gave defendant his address, he asserted that he had lived within ten miles of the marital residence ever since the parties separated and that defendant could have reached him through their daughter, Acme, his mother or the attorney who represented him in 1999. Neither defendant nor the child had discussed college with him, even though he saw the child every Christmas at a family gathering. Plaintiff asserted that defendant did not tell their daughter the date of the Drexel graduation. He speculated that she kept that information from their daughter so that he would not be able to attend the ceremony. Neither party submitted a certification from either of the children.

On July 20, 2006, plaintiff's attorney wrote to defendant seeking her consent to emancipate the recent graduate and terminate child support. Defendant's attorney responded, agreeing that the child should be emancipated effective June 17, 2006, the date of graduation, and requesting a contribution from plaintiff for college expenses defendant had paid. When plaintiff declined, the parties commenced this post-judgment litigation.

On the basis of the certifications and oral argument, the judge found the following. Plaintiff had not been hiding from defendant. Defendant "deliberately misled" plaintiff by keeping the graduation date from their daughter with a purpose to prevent him from attending. In the judge's view, this conduct "tie[d] into the fact that [defendant] didn't want [plaintiff] to be around," "involved in [the child's] education or [to have] any kind of contact" with them. Further, defendant's delay in seeking reimbursement for college expenses was "intentional," permitted her to obtain child support payments while her son was in college and deprived plaintiff of any opportunity to have input in decisions about college. On that basis, the judge denied defendant's motion to compel her former husband to contribute toward college expenses.

When a child and the custodial parent fail to consult with the non-custodial parent or seek a contribution to college costs before incurring the expense, those facts weigh "heavily against" a post-graduation application for reimbursement. Gac v. Gac, 186 N.J. 535, 539, 546-47 (2006). This is not an absolute bar against a post-graduation request, however. Delay and failure to consult are among the factors a judge must balance in determining whether to compel a non-custodial parent to contribute to college education. See Gac, supra, 186 N.J. at 542-47 (discussing the need to consider the factors identified in Newburgh v. Arrigo, 88 N.J. 529 (1982) and N.J.S.A. 2A:34-23a).

Delay and failure to consult have limited significance when the non-custodial parent is not reasonably available. The conflicting certifications filed in this case raised a genuine dispute of material fact about responsibility for the failed communications and delay. Although plaintiff did not claim that he gave defendant his address as required by their agreement, he asserted that she could have found him. Defendant claimed that she had tried and failed. She briefly and vaguely described her efforts. Plaintiff admitted that he had seen his son every year but had not discussed college with him. Nonetheless, he continued to pay child support beyond the child's eighteenth birthday, arguably indicating his awareness that the child was enrolled in college. Defendant accepted the child support, arguably indicating her willingness to accept $110 per week in lieu of a college contribution in accordance with their agreement.

The disputed facts were material to a central issue: whether the lack of communication was a product of the father's willful blindness, the recalcitrance of the mother and child, neglect on the mother's part or a combination of these and other reasons. Judges are not free to resolve a material issue by selecting between competing versions of the facts stated in conflicting certifications. See Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995). The facts disclosed were not sufficiently one-sided to permit resolution on the papers. See Lepis v. Lepis, 83 N.J. 139, 159 (1980) (noting that a hearing is not required unless there is "a genuine issue as to a material fact"). In addition, the judge relied heavily on hearsay improperly included in plaintiff's certification his report that his former wife had not told their daughter the date of her sibling's college graduation. See R. 1:6-6 (requiring affidavits or certifications based on personal knowledge of one who can give competent testimony). That hearsay evidence was not properly before the court.

Without taking testimony, the judge could not conclude that defendant's certification was untruthful or that she intentionally avoided plaintiff and delayed her request for help with college costs. A plenary hearing was required. Accordingly, the order denying reimbursement is vacated and the matter is remanded.

We also must reverse that part of the order that emancipates the child and terminates child support effective November 22, 2006. There was no dispute that the child graduated from college and was emancipated on June 17, 2006. Reasoning that a delay in the date of emancipation would afford defendant additional assistance with college expenses that might have been paid had she made a timely request, the judge delayed the date of emancipation and termination of child support to November 22, 2006. The obligation to pay child support terminates on the date the child is emancipated. See Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995).

 
Reversed and remanded for further proceedings consistent with this decision.

(continued)

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A-2623-06T5

October 16, 2007