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DOCKET NO. A-6157-06T16157-06T1








Argued: August 20, 2008 - Decided:

Before Judges C.L. Miniman and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-18085-88J.

Elliot H. Gourvitz argued the cause for appellant (Mr. Gourvitz and Ari H. Gourvitz, on the brief).

Gail Ann Anderson, respondent pro se.


This is the third occasion on which we have reviewed decisions of the Family Part judge assigned responsibility for determining applications of defendant Gail Ann Anderson (mother) seeking to compel plaintiff James H. Anderson (father) to contribute to the expense of educating their two children, James, born August 10, 1980, and Michelle, born August 10, 1985.

On September 1, 2005, we reversed an order compelling the father to pay two-thirds of the student loans secured to pay for his childrens' college education. Anderson v. Anderson, No. A-1172-04T5 (App. Div. Sep. 1, 2005) (slip op. at 1) (Anderson I). The judge granted that relief without oral argument or a plenary hearing and without reason or explanation until pressed for fact findings and legal conclusions. Id. at 4. After the notice of appeal was filed, "the judge filed a statement, pursuant to Rule 2:5-1(b), explaining his decision." Id. at 5. However, "his belated findings of fact and conclusions of law were based on a less[-]than[-]complete record." Id. at 6. We found that the judge erred in failing to explain his reasons for denying the father's request for oral argument. Id. at 7-8. And we also found that the judge's Rule 2:5-1(b) statement was not supported by the record and failed to consider all of the factors established by Newburgh v. Arrigo, 88 N.J. 529, 545 (1982). Anderson I at 8-9. As a result, we reversed and remanded the matter for proceedings consistent with our opinion. Id. at 9.

Those subsequent proceedings generated the next appeal. Anderson v. Anderson, Docket No. A-4859-05T5 (App. Div. May 17, 2007) (slip op. at 1) (Anderson II). The same Family Part judge required the father to pay one-half of the student loans after concluding that the doctrine of contra proferentum required the judge to construe the property settlement agreement (PSA) against him on the ground that his attorney drafted the PSA. Id. at 4-5. We reversed reliance on that doctrine in light of Pacifico v. Pacifico, 190 N.J. 258 (2007). Anderson II at 5. We exercised our original jurisdiction to construe the PSA because our interpretation would "eliminate the need for any further litigation." Ibid. We also reversed the award of counsel fees to the mother, again because the "judge failed to make findings of fact and state his conclusions of law with respect to the award of $16,257.55 to the mother." Id. at 8-9. We remanded the matter for reassignment to a different Family Part judge for a hearing on the allowance of fees. Id. at 10. At the time of oral argument in this matter on August 20, 2008, more than fifteen months after our decision, we were advised that there had been no compliance with our mandate.

Shortly before we decided the second appeal, the mother filed a motion returnable on May 11, 2007, seeking an order compelling the father to pay for two-thirds of Michelle's college costs for a fifth year at Rutgers College for which she would receive a master's degree in science education. In support of her application, the mother certified that Michelle had been admitted into the Rutgers five-year joint bachelor's and master's degree program during the spring semester of her junior year. She averred that in or about April 2006 the father was informed of this program and Michelle's intention to complete it and he did not protest Michelle's plan. The mother pointed out that their son James had completed a five-and-one-half-year course of study for which the father was ordered to pay and she estimated that Michelle's tuition for her fifth year at Rutgers would cost $12,000. Because Michelle lived with the mother, there would be no charges for room and board. The mother certified that the father had the ability to pay because in 2004 he had a net income of $272,887 and assets of $2,392,441. She also sought an award of legal fees in the amount of $1885 incurred in connection with her motion.

The father cross-moved for counsel fees and costs. He certified that Michelle made the decision to attend Rutgers without consulting with him and that he refused to pay for the fifth year on December 28, 2006. He pointed out that Michelle gave up a fifty-percent scholarship when she transferred from Stockton College to Rutgers. He asserted that the mother did not have Michelle take out student loans for courses taken during the summer of 2006, contrary to the requirements of the PSA, and urged that the PSA provided that Michelle would be deemed emancipated upon completion of a four-year undergraduate college education. He also asserted that Michelle was living with her grandparents, not her mother, who was still receiving child support on Michelle's behalf. He certified that he and Michelle "have been estranged due to the Court's rulings" and that the mother should not be awarded counsel fees because she has not acted in good faith.

In her reply certification, the mother reiterated some of the averments in her supporting certification and, while acknowledging the loss of the Stockton scholarship, pointed out that the expenses were reduced by having Michelle live at home. She denied that loans were available for summer courses and certified that "Michelle has applied for student loans every year."

Although oral argument was initially denied, it was thereafter permitted on May 11, 2007, but no plenary hearing was ever held. The Family Part judge whose two prior decisions had been reversed by us on appeal granted the relief sought by the mother and denied the cross-motion. This time the judge made findings of fact and discussed the Newburgh factors. He also awarded counsel fees to the mother in the amount of $1,995.50. Specifically, the judge found that the father would have contributed to the cost of Michelle's higher education had the parties not been divorced and that the cost of her education was "minimal when contrasted with the [father's] extraordinarily high income." He also found that the father, a dentist, values higher education and academic success and that Michelle's expectation that he would contribute to her education was "entirely reasonable." The mother sought a two-thirds contribution of $8,000 toward this fifth year of education in the Rutgers joint-degree program, which the judge found was relatively low, reflecting an in-state resident at a public university. He concluded that the father had the ability to pay because he earned a net income of $272,887 and owned assets worth $2,392,441 and was thus "more than financially capable of contributing $8,000.00 towards Michelle's fifth (5th) year at Rutgers University."

The judge found that the joint-degree program was consistent with Michelle's ambitions to become a science teacher and that the father's "income and assets far exceed those of the [mother]." He found that Michelle was highly committed to her goal of becoming a science teacher, admission to Rutgers' Graduate School of Education was highly competitive, and Michelle has continuously succeeded academically. With respect to the financial resources of Michelle, the judge found that "there is no indication that she individually owns assets or holds assets in custodianship or trust." He also found that "[t]here is no indication that Michelle is able to earn substantial income during her full-time enrollment at Rutgers University." He concluded that the father's high income "would render Michelle ineligible" for university grants and that she has been applying for student loans every year.

As to the relationship of the father with Michelle, the judge found that:

[A]ny existing strain on the current relation ship between the [father] and Michelle resulted from the [father's] engagement in aggressive litigation and resistance in sup porting Michelle's education. Given that the [father] has been responsible for creat ing a deteriorating relationship with Michelle, the [father's] argument that a strained relationship justifies non-support of Michelle's fifth year at Rutgers is without merit.

Lastly, the judge found that Michelle's fifth year at Rutgers was "a direct continuation of her undergraduate studies at Stockton College and Cook College of Rutgers University. Rutgers's unique joint degree enables Michelle to receive a teaching certification simultaneously with her Bachelor's and Master's degrees; it is an efficient and economical extension of her undergraduate education." Further, she could not be employed in a public school in New Jersey without a teaching certificate.

The judge rejected the father's argument that the PSA did not allow for the relief granted:

The [father] argues that the parties['] [PSA] specifically states that upon the com pletion of a four-year undergraduate college education, the child shall be deemed emanci pated. But the [father] misconstrues the PSA; emancipation shall occur upon the lat est of the occurrence of one of five (5) events, including the child's engaging in full-time employment. Given that Michelle is enrolled in a five (5) year program, she will not engage in full-time employment until her graduation. Therefore, the PSA does not provide for automatic emancipation upon the completion of a four (4) year degree, nor does it indicate that the [father's] contributions towards his chil dren's post-secondary education should be limited to costs incurred for a four (4) year degree.

Finally, the judge granted the mother's request for counsel fees "based on the [mother's] need, the [father's] ability to pay, and a finding of good faith on the part of the [mother]."

The father filed a motion returnable on July 6, 2007, seeking reconsideration of the order compelling him to pay for Michelle's fifth year of college expenses, transferring the matter to another judge, reimbursing him for the student loans we found he should not have been compelled to pay, for a stay pending appeal, and establishing an emancipation date for Michelle. The mother did not oppose the father's motion and the judge was so advised.

The judge denied the motion for reconsideration on the ground that the facts in Gac v. Gac, 186 N.J. 536 (2006), were distinguishable because there was no evidence that Michelle failed to involve the father in the decision-making process respecting her education and that it was the father's fault that there was a strain on his relationship with Michelle. The judge granted loan reimbursement as a set-off to the father's obligation to contribute toward Michelle's fifth year of post-secondary education and granted a stay pending appeal. The balance of the relief was denied. This appeal followed.

The father contends that the judge erred in construing the PSA because, he says, it clearly provides that he is only obligated to contribute to four years of post-secondary education, at which point in time the child is to be declared emancipated. He also urges that the judge misconstrued the Gac decision. Additionally, he argues that the judge abused his discretion in awarding counsel fees to the mother because he did not find the facts and state his legal conclusions as required by Ribner v. Ribner, 290 N.J. Super. 66, 77 (App. Div. 1996), and did not consider the factors required by Rule 5:3-5(c) and Williams v. Williams, 59 N.J. 229, 233-34 (1971). Finally, the father asserts that the judge "invented answers" to satisfy the factors bearing on a parent's obligation to pay for post-secondary education that were established by the Supreme Court in Newburgh, supra, 88 N.J. at 545.

In Newburgh, the Supreme Court held that

courts should consider all relevant factors, including (1) whether the parent, if still living with the child, would have contrib uted 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 con tribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commit ment 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.


The father specifically contends that there was no evidence to support the judge's findings with respect to factors (1), (2), (5), and (7) through (12). We reject the father's contention with respect to the fifth factor because it has been established by the record. Michelle's goal is to become a science teacher and she enrolled in a double-degree education program at Rutgers. However, with respect to the remaining factors, the mother failed to provide any evidence bearing on factors (1), (2), (7) through (10), and (12). Further, the evidence as to factor (11) was disputed.

Because the mother failed to provide any evidence on seven out of twelve factors that the judge was required to consider, the judge should have denied her motion without prejudice to creation of a complete record or required her to submit the evidence before ruling on her application. In this case, the judge's factual findings were not supported by the record and were clearly erroneous.

Additionally, factual disputes, such as that surrounding factor (11), may not be resolved based on affidavits; a plenary hearing is required. Conforti v. Guliades, 245 N.J. Super. 561, 565 (App. Div. 1991) ("[A] holding which authorizes a trial court to decide contested issues of material fact on the basis of conflicting affidavits, without considering the demeanor of witnesses, is contrary to fundamental principles of our legal practice."), aff'd, 128 N.J. 318 (1992). Thus, the order compelling the father to contribute to Michelle's fifth year of post-secondary education is reversed.

We must also consider the terms of the PSA in resolving the issues on appeal. We have previously construed 9 of the PSA governing post-secondary education, which provides that the children are to "obtain all financial aid available so as to lessen each party's obligation," as requiring the child to apply for all available "scholarships, grants, loans, and work-study programs to assist the student to pay for higher education." Anderson II, supra, slip op. at 7-9. That paragraph is entitled "Post-High School Education" and provides in pertinent part:

If either of the unemancipated children of the marriage is capable of and has the ability to attend post-high school education subsequent to his or her graduation from high school, the Husband and Wife, to the extent that each shall be financially able, shall pay for or contribute to said post-high school education . . . .

The language of the agreement does not mention graduate school nor does it discuss double-degree programs where both degrees are awarded simultaneously, as appears to be the case here. On the other hand, such higher education is not specifically excluded. In this respect, the Newburgh Court noted:

In the past, a college education was reserved for the elite, but the vital impulse of egalitarianism has inspired the creation of a wide variety of educational institutions that provide post-secondary education for practically everyone. State, county and community colleges, as well as some private colleges and vocational schools provide educational opportunities at reason able costs. Some parents cannot pay, some can pay in part, and still others can pay the entire cost of higher education for their children. In general, financially capable parents should contribute to the higher education of children who are quali fied students. In appropriate circum stances, parental responsibility includes the duty to assure children of a college and even of a postgraduate education such as law school.

[Newburgh, supra, 88 N.J. at 544 (emphasis added).]

"[I]n appropriate circumstances, the privilege of parenthood carries with it the duty to assure a necessary education for children." Id. at 543; see also Johnson v. Bradbury, 233 N.J. Super. 129, 136 (App. Div. 1989). "[T]he trend [over time] has been toward greater education." Gac, supra, 351 N.J. Super. at 62 (quoting Khalef v. Khalef, 58 N.J. 63, 71 (1971)). Even where the noncustodial parent was not able to contribute to the expense of a post-secondary education, it has been held that such parent's support obligation may continue through graduate school. Ross v. Ross, 167 N.J. Super. 441, 448 (Ch. Div. 1979) (cited with approval in Newburgh, supra, 88 N.J. at 544).

Graduate school, like college and trade school, is education that occurs after high school. Because the PSA is silent with respect to the exclusion of graduate degrees and double-degree programs, a plenary hearing was required to determine, under the first two factors in Newburgh, whether the father, if still living with Michelle, would have contrib uted toward the costs of her double-degree program and to consider the effect of the background, values, and goals of the father on the reasonableness of the expectation of Michelle for a graduate degree. See, e.g., Tretola v. Tretola, 389 N.J. Super. 15, 20-21 (App. Div. 2006) (Family Part judge "erred in failing to schedule a plenary hearing to determine the intent of the parties in entering into [a] PSA," thus warranting a remand). In this respect, of course, the father's graduate education as a dentist is relevant evidence as is the provision for emancipation upon completion of a four-year undergraduate college education. That provision alone, however, does not resolve the inquiry in the context of a double-degree program where a bachelor's degree will not be conferred until the master's degree is earned.

We do not agree that the portion of the PSA governing emancipation is so clear and unambiguous that the judge erred as a matter of law in denying emancipation of Michelle. The PSA in 9 provides:

A child shall be deemed, for the pur poses of this Agreement, to have become emancipated upon the latest of the following events:

A. Obtaining the age of eighteen (18) years, provided the child has completed high school;

B. Completion of a four-year undergraduate college education;

. . . .

E. Engaging in full-time employment. Any employment of the child during atten dance in post-high school education, summers or school recesses, shall not be deemed full-time employment for the purpose of this Agreement.

Matrimonial agreements which are fair and just "fall within the category of contracts enforceable in equity." Petersen v. Petersen, 85 N.J. 638, 642 (1981) (citations omitted); see also Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006) ("[A] parent can bind himself or herself by consensual agreement, voluntarily and knowingly negotiated, to support a child past majority, and such agreement is enforceable if fair and equitable."). They are basically contractual in nature. Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div.), certif. denied, 142 N.J. 455 (1995); Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995) ("contractual nature of [marital agreements] has long been recognized"). As such, the intention of the parties controls the meaning of the PSA.

In the quest for the common intention of the parties to a contract the court must consider the relations of the parties, the attendant circumstances, and the objects they were trying to attain. An agreement must be construed in the context of the circumstances under which it was entered into and it must be accorded a rational meaning in keeping with the express general purpose.
Even where the intention is doubtful or obscure, the most fair and reasonable construction, imputing the least hardship on either of the contracting parties, should be adopted so that neither will have an unfair or unreasonable advantage over the other.

[Tessmar v. Grosner, 23 N.J. 193, 201 (1957) (citations omitted).]

Under the literal words of the agreement, Michelle is not yet engaged in full-time employment, which will not occur until after she obtains her master's degree in education, and then, possibly not until the following September. Subparagraph (E) simply does not say "[e]ngaging in full-time employment rather than attending a four-year undergraduate college education." We recognize that the words of the PSA may not reflect the parties' mutual intent at the time they negotiated their agreement, and obviously the obligation to support an unemployed, educated child is not without limit. The record before us is not sufficient to permit us to determine the common intention of the parties with respect to education and emancipation and, thus, a plenary hearing is required to explore the factors identified in Tessmar.

With respect to the issue of estrangement under Gac, supra, 186 N.J. 536, we are satisfied that there was not a sufficient factual basis to support the judge's determination that the facts in Gac were distinguishable. At the plenary hearing, the parties must explore the scope and cause of the estrangement between the father and Michelle and determine its impact upon any obligation of the father to contribute to the cost of Michelle's final year at Rutgers. Cf. Philipp v. Stahl, 344 N.J. Super. 262, 272-73 (App. Div. 2001) ("absence of a relationship between [a father] and his daughter" was "one of the many factors that go into" the determination of post-secondary support, the determination of which "should be made initially by the trial court after the necessary hearing"), rev'd on other grounds, 172 N.J. 293 (2002).

This leaves only the issue of the counsel fees awarded to the mother. We are constrained for the third time to reverse the award of fees because the judge again failed to make "factual findings and correlate them with relevant legal conclusions." Ribner, supra, 290 N.J. Super. at 77. Neither did he consider the factors delineated in Rule 5:3-5(c) in awarding fees. See also Gotlib v. Gotlib, 399 N.J. Super. 295, 314-15 (App. Div. 2008) (listing factors in Rule 5:3-5(c)); Chestone v. Chestone, 322 N.J. Super. 250, 255-56 (App. Div. 1999) (same).

Where a judge resolves disputed issues of fact based on opposing certifications without an evidentiary hearing and thus has resolved issues of credibility, the matter should be remanded to another judge. Johnson v. Johnson, 390 N.J. Super. 269, 275-76 (App. Div. 2007 (citing P.T. v. M.S., 325 N.J. Super. 193, 200 (App. Div. 1999); Carmichael v. Bryan, 310 N.J. Super. 34, 49 (App. Div. 1998)). Because our remand in Anderson II has apparently not resulted in the further proceedings we contemplated, this matter is remanded to the Presiding Judge of the Family Part in Middlesex County, who shall reassign the matter to another judge within fourteen days. That judge shall conduct a plenary hearing expeditiously and issue a final decision on or before December 31, 2008.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

This interpretation of the PSA obviously impacts on Newburgh factors (8), (9) and (10).





October 28, 2008