M.J v. B.L

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4572-09T2

M.J.,

Plaintiff-Respondent,

v.

B.L.,

Defendant-Appellant.

_______________________________________________________

March 3, 2011

Submitted February 15, 2011 - Decided

Before Judges Espinosa and Skillman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-808-02.

Cowen, Jacobs & Rothman, attorneys for appellant (Barbara E. Cowen, on the brief).

Respondent has not filed a brief.

PER CURIAM

The parties had a several-year relationship that resulted in the birth of two children, the first on August 8, 2001, and the second on October 22, 2002.

The parties' relationship was tumultuous, and on September 24, 2001, plaintiff filed a domestic violence action against defendant, which resulted in entry of a final domestic violence restraining order on November 15, 2001. That order required defendant to pay plaintiff $174 per week in child support for the parties' first child.

On December 11, 2002, after the birth of the parties' second child, another order was entered that continued defendant's child support obligation at $174 per week.

On March 13, 2003, another order was entered that increased defendant's child support obligation to $371 per week, retroactive to November 14, 2002. The order stated that this obligation "represents $209 for child support and $162 for child care."

On March 25, 2004, another order was entered that increased defendant's child support to $444 per week. There was no breakdown in this order of separate awards for regular child support and child care. As a result of cost of living adjustments, defendant's child support was subsequently increased to $551 per week. No further orders relating to defendant's child support obligation were entered until the end of 2009.

In 2004, defendant moved to Japan to take a new job that resulted in a substantial increase in his salary. In 2008, defendant's salary was approximately $130,000. However, approximately $25,000 of that salary represented a special "ex pat" award defendant's employer paid for defendant's first five years in Japan, which was terminated at the beginning of 2009. As a result, defendant's gross salary in 2009 was reduced to approximately $106,000 per year, which after taxes equals approximately $85,000 per year.

In 2004, plaintiff sent the oldest of the parties' two children to a Montessori preschool and in 2005 she sent the younger child to the same school. Both children have remained in that same private school up to the present day. At the time of the hearing before the trial court, the older child was in third grade and the younger child was in first grade. From 2004 until 2009, plaintiff failed to inform defendant that she was sending the children to the Montessori school and did not seek any contribution from him for the costs of tuition.

On June 25, 2009, defendant filed a motion with the trial court that sought various relief including a recalculation of his child support obligation. Plaintiff responded by filing a cross-motion that sought, among other things, an order requiring defendant "to pay fifty percent of the children's monthly private school costs."

The trial court conducted a two-day evidentiary hearing on the cross-motions at which plaintiff and defendant were the only witnesses. Based on the evidence presented at that hearing, the court entered an order on April 25, 2005, accompanied by a written opinion, which established defendant's child support obligation at $417 per week and also required defendant "to pay fifty-five percent (55%) of the children's private school tuition," effective June 25, 2009. Although the order does not so state, it appears from the court's opinion that its intent also was to impose upon defendant the obligation for paying 55% of the cost of his children's attendance at summer camp. The order also denied both parties' applications for counsel fees.

Defendant has appealed solely from the part of the order that requires him to pay 55% of the cost of his children's tuition at the Montessori school. Plaintiff has not filed an answering brief. The trial court has stayed that part of the order pending the outcome of this appeal.

In Hoefers v. Jones, 288 N.J. Super. 590, 611-12 (Ch. Div. 1994), aff'd o.b., 288 N.J. Super. 478 (App. Div. 1996), the court identified fourteen factors that a court should take into consideration in determining whether to impose an obligation upon a non-custodial parent to pay for part or all of the cost of his or her child's attendance at a private school:

(1) Ability of non-custodial parent to pay.

(2) Past attendance of one or both parents at that or a similar private school.

(3) Whether children were attending private

school pre or post divorce.

(4) Prior agreement of non-custodial parent

to pay, to send children to private

school.

(5) Religious background of the parties,

their children.

(6) Are special educational, psychological

and/or special needs of child met,

advanced by such private schooling?

(7) Generally, is it in the child's best interest to attend, or to continue to attend, private school (is the academic environment in child's best interest?).

(8) Whether court order or agreement of parties prefers specific right of school choice on residential custodial parent.

(9) Were actions of residential custodial parent to enroll or to continue to enroll the children reasonable under the circumstances?

(10) Is such private school tuition permitted or authorized as part of that state's child support guidelines, or by other law(s)?

(11) Ability of child to respond, prosper from this educational experience; will such schooling be of particular benefit to him or her?

(12) Lack of present, past non-custodial parental involvement in children's education.

(13) Degree of involvement of custodial parent in children's education (is it extensive?).

(14) Is residential custodial parent's views, desires consistent with past practices regarding private school education?

These factors should not be assigned equal weight or applied in the same manner in every case. One or more of the factors may be controlling under the circumstances of a particular case.

It is clear that seven of the Hoefers factors do not support imposition upon defendant of the obligation to pay part of the costs of his children's attendance at the Montessori school. The children were not attending private school when the parties separated because they were too young to have started school (Hoefers factor 3); there was never any agreement by defendant to send his children to the Montessori school (Hoefers factor 4); there is no religious background of either party militating in favor of sending their children to private school and in any event the Montessori school is non-sectarian (Hoefers factor 5); there was no evidence present that the children have any special educational, psychological or other needs that are advanced by their attendance at the Montessori school (Hoefers factor 6); there is no evidence, other than plaintiff's personal opinion, that the academic environment at the Montessori school is any better than in public school (Hoefers factor 7); there is no court order or agreement of the parties that confers a specific right upon plaintiff to select the school the children will attend (Hoefers factor 8); and there is no evidence that plaintiff's decision to send the children to the Montessori school is consistent with "past practices" of the parties "regarding private school education" (Hoefers factor 14).

Furthermore, three of the Hoefers factors the trial court identified as favoring imposition upon defendant of part of the obligation for the children's attendance at the Montessori school are present only because plaintiff made a unilateral decision five years before the issue was brought before the court to send the children to the school without consulting or even notifying defendant: plaintiff's decision to continue the enrollment of the children at the Montessori school was reasonable under the circumstances (Hoefers factor 9); ability of the children to prosper from this educational experience (Hoefers factor 11); and plaintiff's extensive involvement in the children's education at the Montessori school (Hoefers factor 13). We do not consider it appropriate to bootstrap the consequences of plaintiff's failure to consult or even notify defendant of her decision to send the children to the Montessori school into factors supporting imposition upon him of an obligation to pay a share of the cost of that education.

As for the remaining Hoefers factors, although plaintiff attended the same Montessori school to which she now sends the parties' children, defendant obtained his education solely in public school (Hoefers factor 2), and there is at least a substantial question concerning defendant's ability to pay the substantial tuition obligation the trial court imposed upon him, which amounts to approximately $275 per week in addition to his $414 per week child support obligation (Hoefers factor 1). In any event, we consider the dominant factor in this case to be the fact that plaintiff made a unilateral decision to send the children to the Montessori school without consulting or even notifying defendant and that she first sought to impose a share of the costs of tuition upon defendant five years later by way of a cross-motion in response to defendant's motion to reduce his child support obligation. See Gac v. Gac, 186 N.J. 535, 546-47 (2006).

Accordingly, we reverse the part of paragraph two of the April 25, 2010 order that requires defendant to pay 55% of his children's tuition for attendance at the Montessori school.1

1 This reversal will have no effect upon defendant's obligation to pay his proportionate share of the cost of the children's attendance at summer camp because defendant has not challenged that obligation and our reason for reversing the part of the order obligating him to pay part of the tuition for attendance at the Montessori school would not apply to summer camp.