RENEE STONE v. JOHN E. STONE, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3968-10T4

RENEE STONE,

Plaintiff-Appellant,

v.

JOHN E. STONE, JR.,

Defendant-Respondent.

________________________________

May 7, 2012

 

Submitted April 23, 2012 - Decided

 
Before Judges A. A. Rodr guez and Fasciale.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-734-01B.

 

Jacobs & Barbone, P.A., attorneys for appellant (Lucille A. Bongiovanni, on the brief).

 

Reynolds & Scheffler, L.L.C., attorneys for respondent (Christina M. Workman, on the brief).

PER CURIAM

In this post-divorce matrimonial case in which plaintiff-wife sought to modify defendant-husband's child support obligations, plaintiff appeals from paragraph three of an October 22, 2010 order enforcing a verbal agreement to split equally the private high school tuition for the parties' children.1 We reverse, remand, and direct the judge to (1) recalculate defendant's child support obligations, and consider in her analysis the children's private high school educational expenses and any other relevant factors; and (2) determine the nature of the parties' agreement and whether reallocation is warranted.

The parties were married for eight and one-half years, produced three daughters,2 and divorced in 2001. On March 29, 2001, the court entered a final judgment of divorce (JOD), which incorporated the parties' property settlement agreement (PSA). The PSA provided that defendant would pay child support and the parties would contribute to postsecondary education expenses "to the extent that each shall be financially able[.]" Although the PSA did not address private high school tuition, the parties alleged that at some point they agreed verbally to contribute to the costs equally.

Over the next decade, defendant's income increased substantially. As a result, plaintiff filed a motion to modify child support, and she requested that the judge (1) recalculate the parties' obligation under the PSA to pay postsecondary education costs, and (2) reallocate the parties' obligation to pay high school tuition.3 Plaintiff argued that defendant's increased income constituted changed circumstances warranting a modification to defendant's support obligation. Defendant's counsel conceded that "a recalc[ulation] of the child support isn't a problem[,]" indicated that defendant agreed to send his children to private high school, but requested that the judge enforce the parties verbal agreement to split the high school costs equally.

The judge conducted oral argument, issued an oral opinion, and entered the October 22, 2010 order. She determined that plaintiff demonstrated changed circumstances due to defendant's increased income, agreed to modify defendant's support obligations, and reserved decision on the calculations "pending submission of additional information from both parties." The judge scheduled a plenary hearing, allowed the parties to resubmit child support guideline proposals,4 and indicated that at the hearing she would address the parties' obligation to pay postsecondary education costs.5 In paragraph three of the October 22, 2010 order, the judge denied plaintiff's request to recalculate the parties' obligations to pay high school tuition. In her oral decision, she stated:

On the high school cost issue[,] the parties have an oral agreement it appears, . . . without having a plenary hearing, but I do think that the certifications[6] . . . do not contradict one another, that there was an oral agreement for the parties to split the cost of high school fifty-fifty. If that was their agreement, I'm going to enforce that agreement. I'm going to deny the application for a change in the allocation of the high school costs at this time.

 

[(Emphasis added).]

This appeal followed.

On appeal, plaintiff agrees with the judge that defendant's increased income constituted changed circumstances warranting modification of defendant's child support obligations. Plaintiff contends, however, that the judge (1) failed to consider the children's high school expenses when modifying defendant's child support obligations, in violation of N.J.S.A. 2A:34-23 and the Child Support Guidelines7; and (2) erred by enforcing their verbal agreement.

We begin by addressing plaintiff's contention that the judge did not consider education costs when modifying the support obligations.8 "When [a] movant is seeking modification of child support, the guiding principle is the 'best interests of the children.'" Lepis v. Lepis, 83 N.J. 139, 157 (1980). N.J.S.A. 2A:34-23 and the Child Support Guidelines contemplate that educational expenses are a component of child support in certain circumstances. To determine whether to modify child support, a court must consider the factors listed in N.J.S.A. 2A:34-23(a):

(1) Needs of the child;

 

(2) Standard of living and economic

circumstances of each parent;

 

(3) All sources of income and assets of each

parent;

 

(4) Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children

including the cost of providing child care

and the length of time and cost of each

parent to obtain training or experience for

appropriate employment;

 

(5) Need and capacity of the child for

education, including higher education;

 

(6) Age and health of the child and each

parent;

 

(7) Income, assets and earning ability of

the child;

 

(8) Responsibility of the parents for the

court-ordered support of others;

 

(9) Reasonable debts and liabilities of each

child and parent; and

 

(10) Any other factors the court may deem

relevant.

 

[(Emphasis added).]

 

Likewise, "educational expenses for children (i.e., for private . . . schools)" may require an adjustment to a child support award. Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2515 21(e) (2012). Considering that N.J.S.A. 2A:34-23 and the Child Support Guidelines contemplate that educational expenses are a component of child support, we direct the judge to consider the high school educational expenses of the parties' children, and any other relevant factors, when recalculating defendant's child support obligations.

Next, we conclude that the judge made insufficient findings regarding the parties contention that they verbally agreed to split the high school expenses equally. The judge found that "it appears, . . . without having a plenary hearing," that there was an oral agreement. She stated, "[i]f that was their agreement," then she would enforce it. Defense counsel argued before the judge that the parties "agreed to send their children to [private] [h]igh [s]chool," and that "they both discussed what they could afford [at the time of the agreement]."9 Defendant's counsel maintained before the judge, therefore, that the dispute is "over what these parties understood that they could afford." The record is incomplete, however, regarding the details of the agreement, when it was made, and whether there is any basis to modify it.

We therefore direct that the judge conduct a plenary hearing, determine the nature of the parties' agreement regarding high school tuition and whether there is any legal basis to modify it, and to make any warranted adjustments to defendant's support obligations pursuant to the applicable law.

Reversed and remanded. We do not retain jurisdiction.

1 On February 18, 2011, the judge certified paragraph three of the October 22, 2010 order to be final. On March 3, 2011, we dismissed the appeal as interlocutory. On March 4, 2011, the judge ordered the parties to submit child support worksheets in preparation for a March 23, 2011 plenary hearing. On March 24, 2011, the parties entered into a consent order resolving all issues except high school tuition costs. The parties agreed that defendant's child support obligation would be revisited if plaintiff appealed from paragraph three of the October 22, 2010 order. On April 15, 2011, plaintiff filed this appeal.

2 Born in 1993, 1995, and 1996. At the time of the motion, the parties' oldest daughter was considering where to attend her postsecondary education. The motion sought to reallocate high school tuition costs for the youngest daughters, and credit for tuition paid for the oldest daughter.

3 The motion sought other relief not the subject of this appeal.

4 The parties disputed the amount of defendant's increased income: plaintiff contended that defendant's income doubled, from $65,000 in 2001 to $131,000 at the time of the motion. Defense counsel argued that plaintiff's "numbers are inaccurate." The judge did not resolve this factual dispute because the parties reached an agreement on March 24, 2011 regarding his support obligations.

5 In paragraph two of the March 24, 2011 consent order, the parties resolved their dispute regarding postsecondary education costs.

6 Although the judge referred to certifications, the parties provided on appeal only defendant's certification.

7 In fairness to the judge, she did not modify defendant's support obligations because the parties entered into the March 24, 2011 consent order.

8 Although the parties subsequently resolved the dispute regarding defendant's child support obligation, we address plaintiff's contention on appeal that the judge did not consider education costs when modifying the support obligations because defendant reserved his right to "reopen the issue of child support" if plaintiff appealed from paragraph three of the October 22, 2010 order.

9 Although the October 22, 2010 order mentioned that the parties reached the agreement "at the time of their [JOD]," the transcript of oral argument before the judge reflects that the agreement was entered at some point thereafter.