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DOCKET NO. A-1147-07T21147-07T2









Argued January 5, 2009 - Decided

Before Judges Lisa and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-1690-98.

Amy Sara Cores argued the cause for appellant (Hoffman, Schreiber & Cores, attorneys; Ms. Cores, on the brief).

August J. Landi argued the cause for respondent.


Plaintiff appeals from the September 21, 2007 order of the Family Part judge ordering him to pay seventy percent of the "parties' children's college tuition, room and board [net] after loans, grants, the children's money and other sources of financial aid . . . have been exhausted . . . ." The order requires the parties to share equally other college-related expenses. Because we conclude the court mistakenly exercised its discretion in permitting the matter to proceed to oral argument in defendant's absence, we reverse and remand for reconsideration of all issues anew.

The parties divorced in December 1998. Four children were born of their union. At the time of the divorce, the children ranged in age from fourteen to seven. Incorporated into the judgment of divorce was a Property Settlement Agreement (PSA) that included a provision addressing the parties' expectations related to their children's higher education:

The parties recognize that they have an obligation to provide for the college education of their children, taking into consideration at the time each child attains the appropriate age, the respective income and assets of the parties and the child as well as the child's abilities. The parties agree to consult with a view toward adopting a harmonious policy concerning the college education of each child. Accordingly, as each child is prepared to make application to colleges, both parents shall have the right to approve of the application process and participate in the selection of appropriate schools. It is understood that the children will use their own money and seek all loans, grants, and other sources of financial aid. Post high school education shall include the costs of tuition, room, board, books, school fees and reasonable transportation costs between home and school for school vacations. The parties agree to cooperate in completing any financial aid application.

When their oldest child, who was emancipated at the time the present matter was before the court, attended college, the parties reached an agreement about their respective contributions. Plaintiff agreed to be responsible for seventy percent of the costs, while defendant, Darlene Lewis, was responsible for the remaining thirty percent of those expenses. Their second child was accepted at the University of Scranton. The total estimated annual costs were $39,768. After deducting from that amount the financial aid awarded in the form of loans, grants, and scholarships, the anticipated yearly balance that remained was $17,768.

Defendant proposed to split the costs 70/30 once again. The parties were unable to reach an agreement. Consequently, defendant filed a pro se post-judgment motion seeking an order directing plaintiff to contribute seventy percent towards the college expenses of their second child after deducting financial aid from all sources. Defendant based her request upon what she characterized as the precedent established by plaintiff's seventy percent contribution towards their oldest child's college costs.

Plaintiff, also appearing pro se, opposed the motion. He submitted his tax returns for the previous four years to demonstrate that there had been a substantial decrease in his income over the four-year period. He argued that (1) contrary to the PSA, he was not consulted regarding the college application process or the selection of the University of Scranton; (2) defendant inaccurately stated that he earned "3.8 times what she does"; (3) defendant was receiving $38,000 in non-taxable child support, which he urged was the equivalent of $65,000 in taxable income; and (4) he was unable to pay seventy percent of the costs as requested. Plaintiff proposed that the expenses be split three ways between defendant, plaintiff, and their college-bound child, each being responsible for one-third of the costs.

On the return date of the motion, plaintiff did not appear. The court acknowledged his absence. The court also acknowledged that defendant had requested oral argument and proceeded to hear oral argument. At its conclusion, the court ordered that plaintiff be responsible for seventy percent of the costs not only for their second child, who was the subject of the motion, but for all of the unemancipated children unless there was a change.

On appeal, plaintiff contends the court improperly allocated the respective percentages each party is required to contribute towards college expenses, improperly failed to reduce the child support, which it should have done in consideration of those children attending college, and "misapplied" its discretion by permitting defendant to appear and argue the motion in plaintiff's absence and without making sufficient findings of fact and conclusions of law.

Rule 5:5-4(a) governing motions in the Family Part provides that in exercising its discretion as to the mode and scheduling of disposition of motions, "the court shall ordinarily grant requests for oral argument on substantive . . . motions." R. 5:5-4(a); see also Mackowski v. Mackowski, 317 N.J. Super. 8, 14 (App. Div. 1998) (citing Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997)). As interpreted, the rule contemplates oral argument "when significant substantive issues are raised and argument is requested." Ibid.

Here, the return date of the motion was originally scheduled for August 17, but was adjourned at the request of plaintiff. The court rescheduled the matter for August 31. Plaintiff, as part of his opposition to defendant's motion, submitted a certification dated August 22, in which he requested another adjournment:

I also need to inform his honor that I can not attend in person on August 31 to represent myself in oral argument. My coworker is on vacation next week and my presence at work is mandatory. My job is directly related to the existing credit crunch in the financing markets and I have to be at work. I humbly ask for an adjournment and full financial disclosure [to] settle this matter.

Although defendant did not specifically request oral argument, it is apparent by his adjournment request that he wanted to appear to "represent [himself] in oral argument." There is no record indicating that the court responded to plaintiff's second adjournment request. Rather, it appears that the court was unaware that the request had been made. Before defendant commenced her oral argument on August 31, the following exchange occurred between defendant and the court:

THE COURT: All right. I note Mr. Eastwood is not here. Ms. Lewis had requested oral argument, so I will proceed on her motion and also hear your response to his motion.

MS. LEWIS: Okay. I did not receive a motion from him.

THE COURT: Oh, wait a minute. Perhaps -- just bear with me a second.

MS. LEWIS: Sure.

THE COURT: Oh, you are correct. It was just your motion. Okay. All right. I'll hear from you.

MS. LEWIS: Okay. I don't know why he's not here. He did e-mail me actually saying that this was the date today that we were supposed to be here. It's a very timely matter, as my son started school and the first payment was due August 22nd. I had had a court date for August 17th, which he called and said he couldn't make, so you adjourned it for this date. Any he's not here again. Tuition is now late. My son has started school. I'm kind of in a bind. So I'm happy that you've allowed me to present my oral argument today.

The court proceeded to consider defendant's oral argument without placing on the record any reasons for exercising its discretion to proceed in plaintiff's absence. Under these circumstances, we are constrained to vacate the order entered and remand for reconsideration of the matter to afford plaintiff an opportunity to appear for oral argument.

In view of our remand, we take the opportunity to comment upon plaintiff's contention that the court reached its decision without considering defendant's remarriage, without requiring defendant to submit a completed Case Information Statement (CIS), and without considering the fact that child support had not been adjusted to reflect that his second child was not living at home during the school year.

Plaintiff's certification in opposition to defendant's motion did not raise any of these issues. Nonetheless, in light of our remand and the passage of time, the court should direct the parties to submit updated CIS's and, when considering the motion anew, articulate its consideration of the factors set forth in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), where the Court established a twelve-factor balancing test to aid in determining whether and to what extent a court should require a parent to contribute to the cost of a child's post-secondary education. See R. 1:7-4 (requiring by written or oral opinion, findings of fact and conclusions of law "on every motion decided by a written order that is appealable as of right").

Reversed and remanded for further proceedings consistent with this opinion.





March 19, 2009


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