ADRIAN DEWINDT-KING v. STANLEY O. KING

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3417-06T53417-06T5

ADRIAN DEWINDT-KING,

Plaintiff-Appellant,

vs.

STANLEY O. KING,

Defendant-Respondent.

__________________________________

 

Submitted: October 31, 2007 - Decided:

Before Judges Cuff, Lisa and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Gloucester County, Docket No. FM-08-3-99.

Puff & Cockerill, attorneys for appellant (Richard W. Rogers and Christine C. Cockerill, on the brief).

Charles J. Sprigman, Jr., attorney for respondent.

PER CURIAM

Plaintiff Adrian DeWindt-King and defendant Stanley O. King divorced in 1990. They have two children, a son born in 1983 and a daughter born in 1985. Their son enrolled in a doctoral program at the University of Virginia following completion of his undergraduate education in May 2005. In December 2006, plaintiff filed a motion to compel defendant to continue to pay child support and educational expenses not covered by their son's generous grant package. Defendant filed a cross-motion to declare his son emancipated. Plaintiff appeals from the order denying her motion to compel defendant to pay child support and educational expenses, declaring their son emancipated as of May 31, 2005, and denying counsel fees. We affirm the order of emancipation but modify the date of emancipation to the date defendant filed his cross-motion. We also affirm the denial of counsel fees.

The parties married in 1981 and divorced in 1990. By order dated July 8, 2004, plaintiff was required to pay 48% of the children's educational expenses, after deduction of loans and scholarships. Defendant was responsible for the balance. If a child chose to reside off-campus, the child was required to pay one-third of off-campus room, board, food and utilities if "the cost exceeds the expense for on-campus room and board." Defendant was also required to pay $205 each week in child support.

In July 2004, the parties' son was about to commence his senior year in college. It is undisputed that he graduated in May 2005 and enrolled in a behavioral neuroscience Ph.D. program at the University of Virginia. The parties' son received an extremely generous fellowship from the institution that provides virtually full financial support.

Following the son's graduation, defendant continued to pay child support. He did not file a motion to emancipate his son until plaintiff filed a motion on December 4, 2006, to enforce the July 2004 order. In her motion, plaintiff sought an order requiring defendant to pay 52% of the post-secondary educational expenses of their son, 55% of the children's uncovered medical expenses, and to reimburse her for past educational and medical expenses.

In an oral opinion, the judge ordered the parties' son emancipated as of May 31, 2005, thereby denying plaintiff's request for child support and contribution to their son's graduate educational expenses. Citing the parents' educational and vocational backgrounds and their son's educational accomplishments, the judge noted that both parents seemed willing to make voluntary contributions to their son as needed. The issue for the judge was whether he should compel such contributions. The judge reviewed the Newburgh factors and concluded that in this instance, the son should be considered emancipated. In the course of his opinion, the judge suggested that, when the child is pursuing a graduate or professional degree, the child/student should present evidence that the advanced degree may not allow him to repay student loans. The judge also noted that the age of the parents, their need to plan for retirement, and any new responsibilities assumed by subsequent marriages should be considered.

On appeal, plaintiff urges a de novo review of the ruling because the motion judge misapplied the law to the facts. Plaintiff argues that the weight of authority dictates that the parties' son should not be considered emancipated and that the motion judge impermissibly shifted the focus from the best interests of the child to the best interests of the parent. She also contends that her request for counsel fees should have been granted. Defendant responds that the motion judge properly applied the law to the facts and did not err by denying counsel fees.

In support of her argument that their son should not be considered emancipated and that defendant should be compelled to pay child support to her and a portion of any uncovered personal expenses of their son, plaintiff cites the educational accomplishments of both parents. It is admitted that both parents possess advanced degrees; it is also undisputed that both parents bore the costs of those advanced degrees.

The seminal case on the issue of parental contribution to post-secondary education is Newburgh v. Arrigo, supra. The Court sought to identify factors to guide judicial consideration of an application to contribute to post-secondary education. 88 N.J. at 545. In doing so, the course a family would have taken if the family had not been fractured by divorce is one of several factors to be considered because

[u]nique problems arise when parents divorce. The heightened economic concerns and animosity that may develop as part of the divorce process in all too many cases may influence a parent's viewpoint as to how he or she would have acted if the family had remained together. Consequently, we have no hesitation in concluding that the first Newburgh factor is not a threshold factor, but rather, is one of the numerous factors to be evaluated and weighed in determining whether a non-custodial parent must contribute to higher education expenses.

[Gac v. Gac, 186 N.J. 535, 545 (2006).]

By identifying a non-exclusive list of factors, the Court attempted to eliminate any educational disadvantage to the children of divorced parents. Newburgh, supra, 88 N.J. at 544. Twelve criteria identified by the Court are:

(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.

[Id. at 545.]

Subsequent courts have consistently followed the Newburgh factors when examining whether to order non-custodial parents to pay higher education costs. See Gac, supra, 186 N.J. at 545-46 (reaffirming and applying the Newburgh factors); Foust v. Glaser, 340 N.J. Super. 312, 316 (App. Div. 2001) (approving trial court's focus on Newburgh factors); Keegan v. Keegan, 326 N.J. Super. 289, 295 (App. Div. 1999) (agreeing with the trial court's application of the facts to the factors enumerated in Newburgh); Raynor v. Raynor, 319 N.J. Super. 591, 616 (App. Div. 1999) (applying Newburgh factors); Hudson v. Hudson, 315 N.J. Super. 577, 582 (App. Div. 1998) (utilizing Newburgh factors to evaluate college contribution claim); Moss v. Nedas, 289 N.J. Super. 352, 356 (App. Div. 1996) (performing a full review of all of the factors enumerated in Newburgh); Blum v. Ader, 279 N.J. Super. 1, 4 (App. Div. 1994) (recognizing support obligation includes the right to college expenses under circumstances set forth in Newburgh); Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993) (noting the tests of Newburgh are to be applied where a contribution toward the direct costs of higher education is sought). Enrico v. Goldsmith, 237 N.J. Super. 572, 576 (App. Div. 1990) (directing trial court to explore the factors identified in Newburgh); Johnson v. Bradbury, 233 N.J. Super. 129, 136 (App. Div. 1989) (holding Newburgh criteria must be carefully applied by the trial court in light of a wide range of relevant facts and circumstances); Weitzman v. Weitzman, 228 N.J. Super. 346, 357 (App. Div. 1988) (directing application of Newburgh factors on remand), certif. denied, 114 N.J. 505 (1989). Furthermore, six years after Newburgh was decided, the State Legislature essentially codified the Newburgh criteria enumerated by the Court when it amended the child support statute, N.J.S.A. 2A:34-23(a). Gac, supra, 186 N.J. at 543 (citing Kiken v. Kiken, 149 N.J. 441, 449 (1997)).

Here, the motion judge addressed each Newburgh factor. The motion judge also considered other factors recognizing that the Newburgh factors are non-exhaustive. Gac, supra, 186 N.J. at 543.

In evaluating the Newburgh factors, the judge found a history of voluntary contributions by defendant, and no evidence that either parent would not willingly make contributions. He also found that both parents were college graduates with advanced degrees and both have high expectations for their children. The judge found that the ability of a parent to pay the cost of higher education is less relevant with post-graduate contributions.

As to the parties' son, the judge found that he certainly had the aptitude and commitment for post-graduate education, that he was actively pursuing that degree, and his course of study was directly related to his professional goals. The judge also cited the son's ability to repay any indebtedness because of his enhanced learning capacity derived from his advanced degree. Finally, he found that the father and son had an excellent relationship.

Here, we need not determine whether the motion judge impermissibly considered whether the parties' son would have an enhanced ability to repay any indebtedness as a result of his advanced degree. The traditional factors cited by the motion judge fully support the decision that the parties' son is emancipated. He is twenty-four years of age and enrolled in a doctoral program. The university at which he is enrolled provides full support, including tuition, room, board, and further monetary remuneration. The parties' son does not live in the home of either parent and has not done so for years.

We note that the Court has suggested that in the context of contribution to post-secondary education, the child would be expected to make the request to the parent for contribution before commencing the course of study. Gac, supra, 185 N.J. at 546. Here, defendant asserts, and plaintiff does not deny, that their son has never requested any contribution to his uncovered expenses from either parent. This expectation is even greater in the context of graduate education.

Considering all of the circumstances, we hold that the motion judge identified the relevant factors and did not misapply the law to those factors. Thus, we affirm the order declaring the parties' son emancipated. We modify, however, the effective date of the emancipation order.

Following their son's college graduation in 2005, defendant continued to pay child support without protest. Only when served with plaintiff's motion to continue child support and to require contribution to uncovered educational expenses did defendant move to declare his son emancipated. The effective date of the emancipation order is vested in the discretion of the trial judge. N.J.S.A. 2A:34-23; see also Lepis v. Lepis, 83 N.J. 139, 146 (1980); W.S. v. X.Y., 290 N.J. Super. 534, 541 (App. Div. 1996); Dunne v. Dunne, 209 N.J. Super. 559, 565 (App. Div. 1986). An emancipation order does not invoke the retroactive prohibition of N.J.S.A. 2A:17-56.23a because the obligation to provide support has ceased as a matter of law. Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995). Nevertheless, fixing the emancipation date at May 31, 2005, rather than as of the date defendant sought relief from his support, is unnecessarily punitive to plaintiff. Any order requiring repayment or credits against future payments will inevitably have an impact on plaintiff's ability to provide support to the parties' other child. We, therefore, modify the effective date of the order of emancipation to November 22, 2006, the date defendant filed his cross-motion. This modification also requires consideration of defendant's responsibilities for educational expenses incurred by his son between September 2005 and November 22, 2006, that were not covered by his fellowship and other sources of remuneration.

Finally, we discern no mistaken exercise of the discretion bestowed on the motion judge to grant or deny an allowance of counsel fees. The order denying counsel fees is, therefore, affirmed.

Affirmed as modified and remanded for further proceedings consistent with this opinion.

Newburgh v. Arrigo, 88 N.J. 529 (1982).

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A-3417-06T5

December 20, 2007