KAREN PILLING v. RICHARD PILLING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3222-09T4

KAREN PILLING,

Plaintiff-Respondent,

v.

RICHARD PILLING,

Defendant-Appellant.

__________________________

July 13, 2011

Argued January 10, 2011 - Decided

Before Judges Grall, C.L. Miniman and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FD-04-4781-96.

Lisa M. Radell argued the cause for appellant.

Michael A. Diamond argued the cause for respondent.

PER CURIAM

In this post-judgment matrimonial matter, defendant appeals from three orders of the trial court: (1) requiring him to reimburse plaintiff the amount of $16,982.50, representing one-half of the college expenses of the parties' children; (2) denying his motion to vacate that order; and (3) ordering him to pay plaintiff $2,635.42 in counsel fees. We reverse all three orders.

The parties were married in 1982 and have two children born in 1984 and 1986. They were divorced in Pennsylvania in 1987 and incorporated their property settlement agreement (PSA) into that judgment. The pertinent provisions of the PSA are: paragraph 15, which states that defendant's child support obligation "shall continue until each child reaches the age of majority"1; and paragraph 17, which provides:

In addition to all provisions and covenants contained herein, and in consideration thereof, [defendant] agrees to provide financial support, equal to the amount of support provided by [plaintiff], to each of the children for the exclusive purpose of providing to them a college education or any post-secondary education related to their preparation for a job or career . . . .

The parties' daughter turned eighteen in 2002, and their son in 2004. Nonetheless, defendant continued to pay child support until May 24, 2007, when both children, then ages twenty-one and twenty-three, were declared emancipated as of that date by a court order entered on June 4, 2007. Although both children attended college prior to emancipation, defendant did not contribute directly to their college expenses.

On or about October 15, 2009, plaintiff filed a motion in Camden County to require defendant to pay one-half of the children's college tuition pursuant to paragraph 17 of the PSA; she submitted documentation that the children's combined tuitions totaled $33,965. Plaintiff certified that defendant "knew the kids were in college. [She] paid the tuition [and] continually asked . . . [d]efendant for his one-half share of the tuition but he always side-stepped sending [her] a check." Plaintiff also sought counsel fees.

Defendant certified in opposition that when their daughter graduated high school, he "mentioned that [he] would stop paying child support for [her]." However, plaintiff "suggested that [he] continue paying the child support and the extra money would go toward [his] share of [the daughter's] college costs. That [is] exactly what [he] did." The "same arrangement took place" when their son turned eighteen. "Rather than terminate [his] child support payments to [plaintiff], [he] continued to pay her support for the next several years as [his] contribution to . . . college costs." Defendant asserted that plaintiff "had never asked [him] for a single dollar towards [the] children's college expenses at any time before or during their attendance at school. The simple reason . . . is that [he] was funding their college educations by continuing to pay her child support long after [his] obligation ended."

Defendant further certified that plaintiff first asked him to contribute to college expenses "two years after [their daughter] graduated." However, "[b]ecause [he] already contributed to both children's college expenses by overpaying approximately $20,000 in child support, [he] did not agree to pay anything additional for . . . college expenses."2

Plaintiff certified in reply that "[c]ontrary to what [d]efendant sa[id], he and [she] never had any discussions after the two high school graduations of [their] children that his child support . . . would be his contribution to their support and college tuition." She reiterated that defendant's "college tuition obligation . . . is outlined in" paragraph 17 of the PSA, and that she "paid all the tuition . . . ." She further asserted that she did not have to seek reimbursement of college expenses earlier "because the children weren't emancipated until they graduated college and [she has] a divorce [j]udgment that addresses college tuition."

After hearing oral argument, the judge determined that defendant did not make "overpayments on child support because he voluntarily continued to pay child support until such time as th[e] order of emancipation was entered." The judge added that even if defendant's payments were considered as child support, they could "also be considered the ancillary costs of the college education. [The children] were living at home." In response to defendant's contention that under Pennsylvania law his child support would have terminated when each child reached the age of eighteen, the judge noted:

[E]ven if . . . I had applied Pennsylvania law and said, these children have reached the age of majority . . . and the [c]ourt would have said, [defendant does not] have to pay child support, to use that label, any more, he still would have been responsible for half of the expenses of room and board and clothes, because all of those are ancillary expenses for . . . college education.

The judge denied plaintiff's counsel fee request without comment.

In support of his motion for reconsideration, defendant submitted a brief contending that the judge erred in declining to apply Pennsylvania law, which, he asserted, "does not impose a support obligation on parents of a child who has reached the age of majority[.]" Defendant cited to Pa.R.C.P. 1910.19(e), which provides:

Within one year of the date a child who is the subject of a child support order reaches eighteen (18) years of age, . . . [and] the obligee . . . does not assert grounds for continuing support for the child, then the court shall have the authority to administratively terminate the child support . . . order without further proceedings at any time on or after the last to occur of the date the . . . child reaches age eighteen (18) or graduates from high school.

Defendant contended that requiring him "to not only pay college expenses . . . but to pay child support long after that obligation expired, . . . created a benefit to . . . plaintiff that did not exist in the . . . [PSA]." Defendant also contended that our decision in Marshak v. Weser, 390 N.J. Super. 387 (App. Div. 2007), as well as the Uniform Interstate Family Support Act, N.J.S.A. 2A:4-30.65 to -30.123 (UIFSA), required the judge to apply Pennsylvania law in considering his claims.

Plaintiff filed a cross-motion requesting that defendant reimburse her the amount due for college expenses within fifteen days, rather than according to a timetable the judge had set out in her order. Plaintiff also sought reconsideration of the denial of counsel fees.

Following oral argument, the judge rendered a decision from the bench. In denying defendant's motion, the judge stated that she "addressed it the last time, looking at the language, that that was part of the costs . . . of college because had the children been away at college, . . . he would have paid room and board." The judge did not address defendant's contentions based on UIFSA and Marshak, supra.

The judge reserved on plaintiff's request for reconsideration of counsel fees, and asked both parties to submit current financial information as well as the appropriate certification of services by counsel. On February 25, 2010, the judge entered an order awarding plaintiff $2,635.42 in counsel fees.

On appeal, defendant contends that the judge (1) "revised" the parties' PSA by requiring him to pay college expenses in addition to his overpayment of child support; (2) erred in regarding his child support payments as "ancillary education expenses"; (3) erred in declining to find plaintiff's motion barred by the doctrine of laches; and (4) abused her discretion in awarding plaintiff counsel fees.

In Marshak, supra, as here, the parties were divorced in Pennsylvania and child support was first determined in that state. 390 N.J. Super. at 389. Noting that UIFSA "provides that '[t]he law of the issuing state governs the nature, extent, amount, and duration of . . . obligations of support[,]'" we concluded that "our courts cannot modify the Pennsylvania child support order to provide a longer duration than Pennsylvania law would allow." Id. at 391 (quoting N.J.S.A. 2A:4-30-107(a)). Based upon UIFSA, we "conclude[d] that the Pennsylvania support order [could] not be modified to extend [the] defendant's support obligation . . . ." Id. at 394. Therefore, we vacated "the order requiring defendant to provide continued support for the parties' . . . child." Ibid.

Pennsylvania has also adopted UIFSA. 23 Pa. Cons. Stat. 7107 to 7901. Both New Jersey and Pennsylvania have adopted the following provision: "A tribunal of this State may not modify any aspect of a child support order that may not be modified under the law of the issuing state." N.J.S.A. 2A:4-30.114(c); 23 Pa. Cons. Stat. 7611(c).

Pennsylvania statutory law provides that "[p]arents are liable for the support of their children who are unemancipated and [eighteen] years of age or younger." 23 Pa. Cons. Stat. 4321. Pennsylvania case law supports the proposition that eighteen is the age of majority. See Sutliff v. Sutliff, 489 A.2d 764, 775 (Pa. Super. Ct. 1985) (noting that under Pennsylvania court rules, "the age of majority is defined as eighteen years. Therefore, a child over the age of eighteen is considered an adult for purposes of a support action") (citing Pa.R.C.P.76), aff'd in part, remanded in part, 528 A.2d 1318 (Pa. 1987); see alsoStyle v. Shaub, 955 A.2d 403, 408 (Pa. Super. Ct. 2008) (defining the "age of majority . . . as either eighteen years of age or when the child graduates from high school, whichever comes later").

The language in the parties' PSA, read as a whole, clearly adopts eighteen as the age of majority for child support purposes. Therefore, under that PSA defendant had no support obligation after each child turned eighteen or graduated from high school beyond his agreement to pay one half of what plaintiff paid to provide their children a college education. SeePa.R.C.P.1910.19(e), supra.

Moreover, our review of the record convinces us that the plaintiff did not establish, or even raise a genuine question of material fact relevant to, her entitlement to any additional contribution to college expenses from defendant. The parties' course of conduct was undisputed and inconsistent with plaintiff's belated and unsupported assertion that defendant "volunteered" to assume obligations beyond those stated in the PSA and Pennsylvania law. Defendant tendered, and plaintiff accepted, regular payments in excess of his fifty-percent share of the total expenses she established. Moreover, her failure to take any action to compel defendant to contribute belies her claim that she was entitled to more than he had paid.

In her initial motion, plaintiff sought only reimbursement for tuition expenses pursuant to paragraph 17 of the PSA. Plaintiff did not seek, nor did she document, any "ancillary education expenses" she may have incurred in connection with the children's attendance at college. Defendant opposed her application by documenting that he paid $19,600 in child support after the children "reached the age of majority," which he had no obligation to do under the PSA. Only in her reply certification, when defendant asserted, documented and explained the purpose of those payments, did plaintiff assert that the parties never discussed such an arrangement.

On these facts, the judge erred in justifying her decision by characterizing defendant's child support overpayments as "ancillary education expenses." Even if the PSA could be interpreted to cover living expenses ancillary to the tuition expenses plaintiff established, she did not establish or seek reimbursement for those costs, and the judge arbitrarily equated the payments defendant had made with one half of those unestablished costs.

Accordingly, we reverse and vacate that order.

In addition, the order awarding counsel fees to plaintiff must be vacated because the judge failed to support it with any findings of fact or legal conclusions, as required by Rule1:7-4. The "[f]ailure to perform that duty 'constitutes a disservice to the litigants, the attorneys and the appellate court.'" Curtis v. Finneran, 83 N.J.563, 569-70 (1980) (quoting Kenwood Assocs. v. Bd. Of Adjustment, 141 N.J. Super.1, 4 (App. Div. 1976)). Moreover, as defendant has prevailed on appeal, a counsel fee award to plaintiff is not warranted.

Reversed.

1 Paragraph 15 does not define the "age of majority"; however paragraph 16, which requires defendant to provide health insurance for the benefit of the children "until each child reaches the age of eighteen[,]" refers to that age as "the age of majority." See further discussion below regarding the definition of "age of majority" under Pennsylvania law.

2 Defendant included calculations in his certification demonstrating that his "total overpayment of child support after both children turned [eighteen]" was $19,600. Plaintiff has not disputed this amount.