ROSELLEN NOVAK v. VINCENT J. NOVAK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2340-11T2

ROSELLEN NOVAK, n/k/a

ROSELLEN CRYSTAL,

Plaintiff-Respondent,

v.

VINCENT J. NOVAK,

Defendant-Appellant.

_____________________________________________

March 22, 2013

Argued October 11, 2012 - Decided

Before Judges Fuentes, Ashrafi and Hayden.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1085-95.

Fawn B. Dyer argued the cause for appellant.

Kenneth C. Marano argued the cause for respondent.

PER CURIAM

In this post-judgment matrimonial matter, defendant, Vincent J. Novak, appeals from the October 28 and December 2, 2011 orders requiring him to contribute $31,804 towards previously incurred college expenses for his two children. We reverse the orders and remand for the trial judge to conduct a plenary hearing and make factual findings, guided by the factors outlined in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), and Gac v. Gac, 186 N.J. 535, 546 (2006).

Plaintiff, Rosellen Crystal (formerly Novak), and defendant were married in 1988. They had two children, a son born in 1989 and a daughter in 1992. The parties entered into a property settlement agreement (PSA), which was incorporated into the judgment of divorce on April 30, 1996.

The PSA gave plaintiff sole custody of the children. As to the children's post-secondary education, the agreement provided as follows:

With regard to college, both parties hope that the children will have the desire and the ability to attend college. If the children have the ability and desire to attend college,

1. Both parties shall approve the educational, institutional, course of study and living arrangements;

2. Each party shall contribute equally at the time each child makes application to attend an undergraduate institution;

3. Each party shall encourage the use of financial aid, grants, loans and scholarships to help defray expenses, and they agree to cooperate with each other and the child towards that end. The educational expenses referred to in this paragraph shall include, but shall not be limited to, application and testing fees, room and board, tuition, university and activity fees, required books, materials and supplies, and reasonable transportation expenses.

4. Child support shall continue for each child while he attends a college or university. The amount of child support shall be re-evaluated to determine if a decrease is warranted in light of the HUSBAND's contribution towards college tuition, room and board. Attendance at college must be on a full time continuous basis.

On March 28, 2011, plaintiff filed a motion to enforce litigant's rights, seeking to enforce the PSA by obtaining reimbursement for half of the children's previously incurred college expenses and future contribution for the daughter's education. In her supporting certification, plaintiff explained that she never attempted to obtain financial contribution from defendant because she had not realized that this provision was part of the PSA.

After graduating from high school, the son attended Pennsylvania State University for three full semesters: Fall 2008, Spring 2009, and Fall 2009. The full cost of attendance during this period was $64,206. After subtracting the son's financial aid and federal student loans, a balance of $42,804 remained. After he left college, the son was emancipated by a Family Part order dated April 16, 2010.

The daughter attended Northeastern University for the Fall 2010 and Spring 2011 semesters. The total cost for that academic year was $54,659. About half was covered by grants, student loans, or other financial aid, and plaintiff took a loan of $25,000 to finance the remaining portion.1

In opposing the motion, defendant did not dispute that his children had the ability and desire to attend college. However, he contended he should not pay for expenses already incurred since he was not consulted and had no input into the decisions about where the children should attend college. Defendant pointed out that he had been disabled for many years, received Social Security disability payments, and had a total yearly income of about $40,000. He further maintained that, had he been consulted, he would not have approved his daughter attending a school that cost $51,362, over $10,000 more than his yearly income. He only learned that Northeastern was being considered because his son had informed defendant of the daughter's acceptance to that institution. The court concluded that defendant was on notice in early 2010 that his daughter was considering an expensive private college and, if he could not work the issue out with his daughter and plaintiff, he should have asked the court to intervene.

On May 13, 2011, the judge ordered defendant to pay fifty percent of both the proven reimbursable expenses of the children's past college attendance and the daughter's future expenses. In addition, she ordered plaintiff to provide documentation of these expenses. On August 12, 2011, based on plaintiff's records, the judge ordered defendant to pay $34,847.85 for past college costs and reduced defendant's future weekly child support obligation from $147 to $73 to take account of his prospective contribution to college expenses.

Defendant filed a motion for reconsideration on September 7, 2011, disputing both the award of the previously incurred expenses and the accuracy of the calculation. The judge held oral argument on the motion on October 6, 2011, at which time both parties were sworn and provided conflicting information. On October 28, 2011, the judge entered an order "granting" defendant's motion for reconsideration, which changed the method of calculating parental contribution from the fifty percent split in the PSA to a one-third contribution from each parent and the child. After giving him a $4,598 credit for child support payments made while the children attended college, she re-calculated defendant's total past due "college cost obligation" at $31,803.54 and ordered him to pay plaintiff $300 per month toward this amount. Plaintiff filed a motion for reconsideration of the October 28, 2011 order, requesting an upward calculation of defendant's total obligation and an increase in child support, which was denied on December 2, 2011. This appeal followed.

On appeal, defendant argues that the trial judge failed to consider all relevant Newburgh factors in determining whether he should be required to contribute retroactively to his children's college education. Defendant contends that the lateness of plaintiff's motion, her failure to consult with him about the educational options open to their children as well as his long-standing disability and resultant dire financial situation should have led the judge to conclude that defendant should not be responsible for the previously incurred costs.

Plaintiff argues that the trial judge properly considered and rejected the factors on which defendant relies. Plaintiff also contends that defendant knew his children were planning to attend costly private schools and did not object, and that he had the ability to plan financially for his children's eventual college education as early as the parties' divorce in 1996.

When matters in dispute in a post-judgment matrimonial motion are addressed in a PSA, the agreement is "'entitled to considerable weight with respect to [its] validity and enforceability' in equity, provided [it is] fair and just." Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)). If the meaning of the agreement is in dispute, "[t]he court's role is to consider what is written in the context of the circumstances at the time of the drafting and to apply a rational meaning in keeping with the 'expressed general purpose.'" Pacifico v. Pacifico, 190 N.J. 258, 266 (2007) (quoting Atl. N. Airlines v. Schwimmer, 12 N.J. 293, 302 (1953)). Nevertheless, if circumstances have changed in such a way that strict enforcement of the agreement would no longer be equitable, a court remains free to alter prior arrangements. Lepis v. Lepis, 83 N.J. 139, 146-48 (1980).

The obligation of a parent and the right of a child to support may give rise to "the duty to assure children of a college and even of a postgraduate education . . . ." Newburgh, supra, 88 N.J. at 543-44. The existence and extent of a parent's obligation for the cost of such post-secondary education depends upon the expectations and relevant abilities of the child and his parents considering all the relevant factors, including:

(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.

[Id. at 545.]

Since Newburgh was decided, the Legislature has essentially incorporated these factors into the child support statute. N.J.S.A. 2A:34-23(a). We have required application of these factors even where the property settlement agreement or judgment of divorce made provision for college contributions. See Gotlib v. Gotlib, 399 N.J. Super. 295, 310-11 (App. Div. 2008) (remanding for consideration of Newburgh factors, and, in particular, to address delay in seeking contribution); Moss v. Nedas, 289 N.J. Super. 352, 360 (App. Div. 1996) (holding, after a Newburgh analysis, that a parent with financial difficulties and no meaningful relationship with child did not have to contribute to college expenses despite PSA requirement).

In her written December 2, 2011 opinion, the judge addressed the applicability of Gac to this case. The judge recited all twelve Newburgh factors but focused on one factor the relationship of the paying parent and the child and concluded that, unlike Gac, "this case deals with a father who is not estranged from his children." Accordingly, the judge decided that "the relationship factor does not tip the scale against the plaintiff's right to a college contribution for expenses incurred prior to plaintiff's application." The judge made no findings concerning the other Newburgh factors.

In Gac, supra, 186 N.J. at 546, the Supreme Court noted that "the factors set forth in Newburgh . . . contemplate that a parent or child seeking contribution towards the expenses of higher education will make the request before the educational expenses are incurred." As such, "[t]he failure to do so will weigh heavily against the grant of a future application." Id. at 547. In Gac, the father paid child support while the child was in college and the mother did not request college expense contribution until after graduation. Id. at 539. The Court concluded that "those facts are significant and tip the scale in favor of denial of plaintiff's request for contribution." Id. at 547. Subsequently, in Gotlib, supra, 399 N.J. Super. at 310, we applied the Gac holding and concluded that, when the motion is brought after the expenses are incurred, thereby excluding the parent from the decision-making process, splitting college expenses in half between the parties without addressing the Newburgh factors was "not sustainable."

In her December 2, 2011 decision, the trial judge enumerated the Newburgh factors but made no specific findings applying these factors to this case. Rather, the trial judge determined that the parents and child should contribute one-third each to the college expenses for private colleges. Her decision did not discuss the PSA's requirement that the parent must approve the educational institution or Gac's requirement that the parents must have the opportunity for meaningful input into the decision-making process. Instead, she distinguished Gac on the basis that the parent in that case was alienated from his child, whereas here, he was not.

Of particular concern to us is the judge's failure to address what appears to be plaintiff's and the child's choice to not involve the father until long after the decisions were made, thereby excluding him from the process. Participation by both parents was expressly required by the PSA, and was a critical factor in Gac, and should be weighed heavily against requiring payment for expenses incurred without such participation. Gotlieb, supra, 399 N.J. Super. at 310.

From our review of the record we conclude that a remand is required for consideration of the Newburgh factors on a fuller record. We perceive that a plenary hearing is necessary to resolve the existing factual disagreements between the parties, including the financial ability of each party to contribute, the relationship of the defendant to each of the children when the educational decisions were being made, and the specific efforts, if any, by either parent or child to involve defendant in the decision-making process. At the hearing, the judge will have an opportunity to assess the credibility of the parties and make specific findings of fact as to each Newburgh factor.

Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

________________________

ASHRAFI, J.A.D., concurring in the result.

My review of the record leads me to conclude that the Family Part reached appropriate conclusions in accord with the applicable law and correctly ordered defendant-father to pay a share of the children's past college expenses. I believe a remand is needed only to clarify a narrow factual issue that is inadequately addressed in the record whether father knew that the parties' son was attending Penn State University for three semesters. The answer to that question could potentially affect the total amount the Family Part would order father to reimburse plaintiff-mother for the Penn State expense. It would not undermine the Family Part's overall decision that he must pay for his proportionate share of the daughter's first year at Northeastern University or that he must pay some part of the son's college expenses at Penn State.

I disagree that a broader inquiry is required on remand. My colleagues direct the Family Part to determine whether father should pay anything at all for past college expenses of either child by applying the full twelve-factor balancing test of Newburgh v. Arrigo, 88 N.J. 529, 545 (1982). They also direct the Family Part to apply the holdings of Gac v. Gac, 186 N.J. 535 (2006); Gotlib v. Gotlib, 399 N.J. Super. 295 (App. Div. 2008); and Moss v. Nedas, 289 N.J. Super. 352 (App. Div. 1996), to determine whether father should be relieved from paying his share of past college expenses because he was not consulted about the children's college choices and because mother and the children did not make timely demand upon him for financial assistance. I do not believe the holdings of the cited cases apply to the factual circumstances before us in the manner directed by my colleagues, or that a remand is appropriate for a broad reconsideration of the Family Part's essentially correct decision. I view the marital settlement agreement of the parties as enforceable and a crucial factual circumstance that distinguishes this case from the precedents upon which my colleagues rely.

The two children of the marriage were in mother's custody since the parties divorced in 1996. Our record does not specify how much contact they had with their father, or what part he played in their lives. He paid child support, although his arrears exceeding $30,000 at the time of the divorce were substantially forgiven by the marital settlement agreement in exchange for other considerations, including his agreement to pay for college expenses in the future. The mother also waived any claim for alimony. The agreement pertained almost entirely to support for and parenting of the two young children.

Fifteen years after the divorce, father filed a motion to emancipate the parties' son and thus to reduce his child support payments. Mother responded with her March 2011 motion for reimbursement of recent medical and college expenses of the children. The judge appropriately ordered follow-up submissions to establish the relevant facts and an accounting of the expenses. Over the next seven months, the judge entered five orders, each with a written explanation reflecting the judge's cognizance of the relevant law. In the course of examining the parties' evidence and arguments, the judge made adjustments to father's financial obligation based on the facts specific to this case. Included in the adjustments was a credit to father reducing his obligation to pay for the son's college expenses in the amount of the child support payments he had made for the son after he left college. We are not reviewing a cursory ruling of the Family Part belatedly ordering father to reimburse mother for past unanticipated expenses. The judge's attention to detail in determining father's obligation cannot be faulted on this record.

As the judge properly found, this was not a case of estrangement of the children and their father, thus raising an equitable argument against ordering his financial assistance. See Gac, supra, 186 N.J. at 539; Gotlib, supra, 399 N.J. Super. at 307-11; Moss, supra, 289 N.J. Super. at 359. We have no facts on this record from which we might conclude that mother and children intentionally excluded father from decisions about college choices. In the 1996 marital settlement agreement, father expressed his hope that his children would attend college. When they were in their last years of high school, he must have known they might attend college. Perhaps he should have asked them about their plans and offered his assistance and advice. Nothing in the record tells us what, if anything, interfered with father's participation in selecting colleges for his children. His own lack of interest is as likely a cause as any conduct of mother and the children.

With respect to the daughter's attendance at Northeastern University in 2010-2011, father's current wife testified that the son temporarily moved into their home in the winter of 2010 and informed the family that his sister would be applying to Northeastern. After she was accepted and enrolled, father's new family visited her at the university. Based on this evidence, the judge properly found that father was aware his daughter would be attending Northeastern and raised no objection. The daughter had also complied with the requirement that she obtain financial aid and loans to help pay the expenses. The judge made the requisite findings and reached appropriate conclusions that father was not excluded from the daughter's decision to attend Northeastern. Missing from our record, however, are similar findings about the father s knowledge that the son would be attending Penn State.

It is true that mother did not request reimbursement until the children had already attended a total of five semesters between the two and the costs had been incurred. The delay was not as significant as that of the mother in Gac, supra, 186 N.J. at 546, who waited until the child had graduated from college before demanding payment from the father.

As so often happens in post-judgment matrimonial matters, mother's 2011 motion was a reaction to father's initiating litigation. He sought to emancipate their son, who had left Penn State and was addressing some personal problems. Mother consented to emancipation, and thus a reduction of the child support she would receive, despite her hope that the son would soon return to complete his college education. Father's motion prompted mother to review their 1996 marital settlement agreement. Mother then recalled that they had agreed to share equally in the children's college expenses. She had been bearing that expense alone, having obtained massive parent-student loans totaling about $70,000 in just two-and-a-half years without realizing that the children's father was obligated to pay a share of the college expenses. The mother's failure to act sooner should not disqualify her request for reimbursement. Until the other party initiates litigation, a divorced parent may reasonably let well enough alone and not seek changes in the status quo, even if she is receiving less than her full entitlement.

Nor does father have a viable argument that a timely demand would have permitted him to plan financially to pay his share of the children's college expenses. See Gac, supra, 186 N.J. at 546. Father should have been as aware as mother that he was obligated by the marital settlement agreement to pay a portion of his children's college expenses. He had years to plan for that responsibility, and he could have made some inquiries to understand how much he might have to pay.

According to mother, she first contacted father and sought only his agreement that she declare their daughter as her dependent for purposes of an exemption and college expense deductions on her income tax returns. She did not initially ask father to contribute to the children's college expenses. Father refused her modest request, stating that he needed to keep their daughter as his dependent to maintain medical insurance for her, and that he had already filed his tax return. Mother then filed her motion seeking reimbursement of his portion of the children's recent medical and college expenses. Throughout the ensuing seven months of litigation, mother was cooperative and reasonable in her requests for relief from the Family Part.

In none of the precedents on which my colleagues rely Newburgh, Gac, Gotlib, and Moss was the court enforcing an agreement of the parties that specified how college expenses would be divided. The first three did not involve marital settlement agreements at all. Only Moss, supra, 289 N.J. Super. at 354, included a marital settlement agreement, but not one that specified what the father's future obligation would be. The agreement in Moss stated indefinitely that the parents would pay college expenses "in proportion to their ability to contribute." Ibid. Moreover, the mother and the child had concealed important facts about college attendance from the father and even from the Family Part as the dispute was being litigated. Id. at 355. Our application of the Newburgh balancing test and the Family Part's "broad equitable powers" was warranted by the factual circumstances in Moss. Id. at 360.

Here, no evidence suggests purposeful concealment of the children's college choices, and the parties' settlement was more specific than in Moss regarding father's obligation. The agreement stated that the parents hoped that the children would attend college, and it fixed the parents' responsibility as equal sharing of undergraduate college expenses after exhaustion of available financial aid. In reaching their settlement agreement, the parents already indicated their positions as to a substantial number of the Newburgh factors, including the proportion of their responsibility.

Settlement agreements in matrimonial cases are contracts that should be enforced as long as they are fair and just. Petersen v. Petersen, 85 N.J. 638, 642 (1981); see also Lepis v. Lepis, 83 N.J. 139, 146 (1980) (matrimonial settlement agreements are enforceable "to the extent that they are just and equitable" (quoting Schlemm v. Schlemm, 31 N.J. 557, 581-82 (1960))). Our courts recognize a "'strong public policy favoring stability of arrangements' in matrimonial matters." Konzelman v. Konzelman, 158 N.J. 185, 193 (1999) (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)); see also Pacifico v. Pacifico, 190 N.J. 258, 266 (2007) (a matrimonial agreement in enforceable so long as it is not inequitable); Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006)("fair and just" settlement agreements should be enforced).

In my view, where parties to a divorce have reached agreement on how college expenses of their children should be split, and no showing has been made that the agreement should be vacated or modified, the Family Part need not hear evidence about and apply anew all twelve factors pertinent to college expenses as discussed in Newburgh, supra, 88 N.J. at 545. By diminishing the effect of the parties agreement and mandating a broad inquiry on remand, my colleagues unnecessarily expand the litigation, together with its costs and discomforts. A party such as mother who gave up potential claims to reach a settlement agreement should be able to rely upon all its terms.

The parties had a fair agreement, and neither father nor my colleagues have any difficulty enforcing it with respect to the daughter's attendance at Rutgers University at the lower expenses applicable for residents of New Jersey.2 Father did not seek modification of the marital settlement agreement on the ground that it was inequitable, or because of "changed circumstances" as permitted under Lepis, supra, 83 N.J. at 148-49. He also did not contend that Penn State and Northeastern were educationally inappropriate for his children.

Father argued the marital settlement agreement was not enforceable because of mother's breach of the provision requiring both parents to "approve the educational, institutional, course of study and living arrangements" of the child at college. Ante at 2. Father contended he should not be ordered after-the-fact to pay the higher expenses of out-of-state tuition at Penn State and private college tuition at Northeastern because he was not asked and would not have approved those choices.3

If he was not aware of and would not have approved his children's more-expensive college choices, father's argument reaches only the difference between those costs and the costs of a less-expensive college choice such as Rutgers. Father could not reasonably have disapproved the costs of Rutgers given his prior agreement, the fact that the children had the aptitude and ability to attend college, and their exhaustion of financial aid opportunities.

As I have stated, the Family Part found that father knew about his daughter's choice to attend Northeastern and raised no objection. That finding is supported by the record and should not be disturbed on appeal. See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). The only unresolved question is whether he also knew about his son's choice to attend Penn State. The Family Part's decisions do not contain an explicit finding as to whether or not the father was aware that the son would be attending Penn State in 2008-2009. If he knew the son's choice and neither objected nor offered to pay the lesser expense of in-state tuition such as at Rutgers, mother should not be barred from obtaining reimbursement. The remand in this case should narrowly focus on that one question. I would not direct the Family Part to reopen issues it has already decided correctly.

1 While this motion was pending, the daughter transferred to Rutgers University for the Fall 2011 semester, where the cost of attendance was much lower. The judge ordered defendant to pay half of the cost, about $5,000 per year after subtracting financial aid and student loans. Defendant does not challenge this ruling on appeal.

2 The record contains hearsay information that the daughter decided to transfer from Northeastern to Rutgers after her freshman year in part because she did not want her parents to be engaged in a dispute about the higher costs of her college education at a private university.

3 Undeserving of comment is father's additional argument that the marital settlement agreement, ante at 2, obligated him only to pay an equal share of expenses related to the children's applications for college admission.