LINDA KMETZ v. RICHARD FUSARO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5870-07T35870-07T3

LINDA KMETZ,

Plaintiff-Respondent,

v.

RICHARD FUSARO,

Defendant-Appellant.

_________________________________________________

 

Submitted September 21, 2009 - Decided

Before Judges Reisner and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1125-94D.

Law Offices of Jeffrey H. Ward, attorneys for appellant (Mr. Ward, on the brief).

Antonio & Flynn, P.C., attorneys for respondent (Colleen M. Flynn, on the brief).

PER CURIAM

In this post-judgment of divorce application, defendant Richard Fusaro appeals from the July 14, 2008 trial court order requiring him to contribute $58,703.73 toward the college costs of his daughter. We conclude that the trial court correctly required defendant to make a further contribution to his daughter's education for the last semester of her junior year and entire senior year at college. However, based on our analysis under Gac v. Gac, 186 N.J. 535 (2006), defendant should not have been required to make any further contribution to his daughter's freshman, sophomore, and first semester junior years, because plaintiff had not requested defendant to pay for those terms until those semesters had already ended, and under the circumstances, it would be inequitable to require him to do so retroactively.

Defendant and plaintiff Linda Kmetz were married on September 29, 1979, and had one child, a daughter, born in 1986. They were divorced on March 3, 1995. Their property settlement agreement contains the following provision regarding funding for their daughter's college education:

The parties acknowledge their desire for the child to attend college or other post graduate professional schooling consistent with the child's ability and the parent's financial means. Each party agrees to assist the child in such endeavor and to contribute according to their then available means after resort to all available financial aid, scholarships and part-time and summer earnings.

After graduating from high school, the daughter attended Marist College. Defendant voluntarily paid $1,500 each year toward her freshman and sophomore year college costs. In the summer between the sophomore and junior year, plaintiff requested that defendant increase his contribution because the daughter would be studying abroad, thereby incurring additional expenses. Defendant increased his contribution to $2,000 that year. In the middle of the daughter's junior year, plaintiff's attorney wrote defendant a letter dated December 29, 2006, seeking additional contributions from him toward the daughter's college expenses. When the parties could not reach a mutual agreement on the amount of defendant's contributions, plaintiff moved to compel defendant to make further contributions to the college costs, among other relief. By order dated July 20, 2007, the trial court directed that the parties exchange financial information, including updated Case Information Statements. It further provided that if the parties could not resolve the matter, another application to the court could be made.

Unable to resolve the matter, plaintiff filed a motion on May 1, 2008, to compel defendant to contribute to the daughter's college expenses. The daughter's college expenses, after deducting scholarships, grants, and loans, totaled $96,255 for four years, broken down by year as follows: freshman year - $21,607; sophomore year - $23,981; junior year $27,026; and senior year $21,509. Defendant contributed a total of $7,500 toward these expenses. He also paid $200 a week, for a total of $10,400 annually, in child support.

According to the Case Information Statements filed by the parties, defendant's annual income in 2006 was $127,048 and his net worth was $97,195, consisting primarily of his 401K; plaintiff's income in 2006 was $59,769 and her net worth was $51,948, also consisting primarily of her 401K. Both parties have remarried. In her motion, plaintiff proposed that the parties divide the daughter's four year college expenses based on the ratio of their incomes. Under this proposal, defendant would be responsible for sixty-eight percent of the college costs.

Defendant filed a cross-motion in opposition, seeking a declaration that his obligation to contribute to the college expenses had been satisfied. Further, he advised the court that he had lost his long-time employment with Schering-Plough and was out of work. His benefits from Schering-Plough were scheduled to terminate on May 14, 2009.

Without hearing oral argument, although requested in both motions, the trial court entered an order dated June 20, 2008, and amended July 14, 2008, requiring defendant to pay plaintiff $58,703.73. This sum represented his sixty-eight percent share of the college expenses, less the $7,500 he had already contributed. Further, defendant was required to pay plaintiff $660 in counsel fees.

In this appeal, defendant contends that plaintiff's application was untimely and barred by the Court's holding in Gac v. Gac, 186 N.J. 535 (2006). Defendant further contends that a plenary hearing is required in order to resolve two factual issues, namely whether he was consulted about his daughter's choice of college and whether plaintiff advised him that his contributions were insufficient.

A non-custodial parent's obligation to contribute to a child's higher education costs is determined by evaluating all of the relevant circumstances, including the following factors:

(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.

[Newburgh v. Arrigo, 88 N.J. 529, 545 (1982).]

These so-called Newburgh factors have been essentially codified in N.J.S.A. 2A:34-23(a). Gac v. Gac, supra, 186 N.J. at 543.

In applying the Newburgh factors, the trial court found that (1) defendant would have contributed to the daughter's college costs if the parties had remained married; (2) defendant reasonably expected his daughter to attend college and provided for that likelihood in the property settlement agreement; (3) the daughter's cost of higher education was reduced by the substantial financial aid she received; (4) defendant has an ability to pay despite his loss of employment because his employment benefits continue until May 14, 2009; (5) the college and its costs were appropriate; (6) both parties have the financial means to contribute to the daughter's college expenses; (7) the daughter had the requisite commitment and aptitude for higher education; (8), (9) and (10) the daughter's financial resources, including scholarships, loans and grants and earnings were taken into account; (11) the record does not indicate that a strained relationship exists between the daughter and defendant; and (12) the relationship between the education and prior training and overall goals of the child was met because the daughter was capable of performing in a higher education setting. The trial court thus concluded that all of the Newburgh factors favored defendant's contribution to the daughter's college education costs.

Indeed, defendant has throughout the years made some contributions to his daughter's college education costs. What is at issue in this appeal, however, is the amount of that contribution. When evaluating the trial court's ruling on that issue, we must look to all of the Newburgh factors, including the father's ability to pay, as well as the timeliness of the mother's application for contribution. While we accord deference to the fact finding of family court judges, Cesare v. Cesare, 154 N.J. 394, 413 (1998), we owe the trial court no deference to its "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty v. Township Committee, 140 N.J. 366, 378 (1995).

A custodial parent or child should not wait until the college expenses are incurred and then seek reimbursement from the custodial parent. Gac v. Gac, supra, 186 N.J. at 546-47.

Obviously, the factors set forth in Newburgh and reaffirmed today contemplate that a parent or child seeking contribution towards the expenses of higher education will make the request before the education expenses are incurred. As soon as practical, the parent or child should communicate with the other parent concerning the many issues inherent in selecting a college. At a minimum, a parent or child seeking contribution should initiate the application to the court before the expenses are incurred. The failure to do so will weigh heavily against the grant of a future application.

[Ibid.]

Failure to consult with the parent beforehand or demand contribution earlier makes it impossible for that parent to participate in the decision making or plan for his own financial future. See id. at 546.

In this case, while defendant did have some conversations with his daughter about selecting colleges, it is apparent from plaintiff's certification that the decision to attend Marist College was made by plaintiff and the daughter. Plaintiff states in her certification in support of her motion: "[My daughter] and I had a conversation while on the Marist campus for accepted students' day, and she liked what she saw and heard. We felt that she would receive a great education at Marist and have some wonderful opportunities as well." Nowhere does plaintiff state that defendant was consulted before the final decision was made or that he approved this kind of college expense and agreed to contribute his proportionate share of the cost. Defendant's statement to plaintiff on one occasion, when the daughter was a sophomore in high school, to the effect that he did not want to be involved in selecting schools, cannot reasonably be considered a statement that he wanted no say in the college selection made when the daughter was a senior in high school, particularly if he were expected to contribute his proportionate share of the costs.

Further, in this case, plaintiff accepted defendant's voluntary contributions to the daughter's expenses without objection until the letter of December 29, 2006, was sent to defendant by her lawyer. Although she had requested additional contributions the preceding summer due to the study abroad program, the record does not reflect her objections to the additional $500 defendant sent in response to the request, until the attorney's December letter. This delay in plaintiff's request must "weigh heavily" against her application. See Gac v. Gac, supra, 186 N.J. at 547 (stating that a delay "will weigh heavily against the grant of a future application").

Plaintiff's delay in seeking contribution, resulting in the accumulation of $58,703.73 in college expenses, is particularly harmful in this case because the costs are high in proportion to defendant's income and assets, and because he has lost his long-standing employment. While the continuation of his benefits for a year beyond his termination mitigates to some extent his job loss, the $58,703.73 required to be paid by the trial court approaches half of his pretax annual income when he was fully employed and is a substantial amount of money in light of his economic situation.

Based on these circumstances, we conclude that under a fair balancing of the Newburgh factors in light of Gac, defendant should not have to pay additional amounts for college expenses that were incurred before plaintiff made her demand in her attorney's letter of December 29, 2006. We do, however, require him to make payments for his proportionate share for those expenses incurred after that time; such contribution is reasonable in light of the Newburgh factors, defendant's income at that time, and his ability to have planned for those payments had he agreed to make them.

As a result, defendant need not make any further contributions than those already made for his daughter's freshman year, sophomore year, and first semester junior year at Marist College. However, he must pay his proportionate share (sixty-eight percent) of the costs for the second semester of his daughter's junior year and for her entire senior year at Marist College.

 
Modified and remanded for entry of an order in accordance with this opinion. We do not retain jurisdiction.

(continued)

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11

A-5870-07T3

October 9, 2009