DONALD MARTIN v. KATHERINE MARTIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DONALD MARTIN,

Plaintiff-Respondent,

v.

KATHERINE MARTIN,

Defendant-Appellant.

Before Judges Maven and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-0045-09.

Hoffman & Mancini, P.C, attorneys for appellant (Melissa Hoffman, on the brief).

Hankin, Sandman & Palladino, P.C., attorneys for respondent (Diana R. Zamani, on the brief).

PER CURIAM

In this post-divorce matrimonial action, defendant appeals from a February 15, 2013 order denying her motion for college contribution for the parties' daughter. Plaintiff opposed the motion, arguing he should not be obligated to make any payment since he was excluded from the college selection process, and otherwise has no relationship with his daughter. We reverse and remand for further proceedings consistent with this opinion.

The parties were married in 1993 and divorced in 2010. Two children were born of the marriage, a daughter and a son. The parties' property settlement agreement (PSA), incorporated into their divorce judgment, provided in relevant part:

25. It is anticipated that [daughter] will attend college beginning in the fall of 2011. It is anticipated that [son] will attend college. Any parental contribution toward the children's college education shall abide the event and the factors set forth in Newburgh v. Arrigo, 88 N.J. 529 (1982). The parties [have] savings bonds for the benefit of [the] children which are in Kathy's possession. No bonds shall be used for the children's college expenses prior to the [Newburgh] analysis, as set forth above.

The divorce proceedings were acrimonious and resulted in a strained relationship between plaintiff and daughter. The parties disagree as to whether plaintiff was excluded from the college selection process, as plaintiff contends, or that he displayed "no interest in participating," as defendant contends. While the record indicates some limited effort by defendant to keep plaintiff informed, plaintiff claims he did not learn where daughter would attend college until hearing it announced at her graduation.

Plaintiff received an email from defendant in November 2010 updating him on daughter's college search and alerting him that she would be looking to him for financial assistance. Plaintiff admitted he received another email on March 30, 2011 advising him daughter had been accepted to three colleges, and "asking me . . . how much I planned to contribute to [her] education."

Defendant did not file her motion for college contribution until December 3, 2012, well into daughter's third semester at college. She attributed her delay in filing the motion to the fact she "could not afford to incur more attorneys' fees," as well as the fact she was involved in litigation with her former attorneys, and was hospitalized for five days in September 2012. In her appeal, defendant argues the motion judge erred in not requiring plaintiff to contribute to college expenses by improperly evaluating the Newburgh factors.

The trial court has "substantial discretion" in deciding the issue of contribution to college expenses. Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (2012); see also Pascale v. Pascale, 140 N.J. 583, 594 (1995). "'If consistent with the law, [the] award will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice.'" Jacoby, supra, 427 N.J. Super. at 116 (quoting Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 2001)). If the "court ignores applicable standards, we are compelled to reverse and remand for further proceedings." Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008). We owe no special deference to the trial judge's "interpretation of the law and the legal consequences that flow from established facts . . . ." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

In Newburgh, our Supreme Court provided a framework for evaluating parental contribution towards a child's post-secondary education and instructed courts to

consider all 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.

[Newburgh, supra, 88 N.J. at 545.]

The judge "has 'an obligation under Newburgh and N.J.S.A. 2A:34-23(a), to consider all the enumerated factors.'" Gotlib, supra, 399 N.J. Super. at 309. (quoting Raynor v. Raynor, 319 N.J. Super. 591, 617 (App. Div. 1999)). The judge did not satisfy this obligation here.

It is well-established that a child over age eighteen enrolled in a full-time educational program requires continued support. See Gac v. Gac, 186 N.J. 535, 542 (2006) (indicating "[t]he Legislature and our courts have long recognized a child's need for higher education and that this need is a proper consideration in determining a parent's child support obligation"). The Court stated, however, that the factors 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 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.

[Id. at 546-47.]

Here, defendant sought to compel plaintiff's tuition assistance for the first time after three semesters of college expenses had been incurred, but before the start of the fourth semester. The motion judge stated the parties clearly expected their daughter to attend college and plaintiff would have contributed toward those expenses if he still lived with her or had a relationship with her. The court also took note of plaintiff's ability to contribute to his daughter's education costs based on the disclosures in his Case Information Statement. The judge stated it did not matter if it was plaintiff's fault that his relationship with daughter declined to the point of no meaningful communication; instead, the court based its decision solely on the timing of defendant's application, explaining that the Court in Gac

stated the Newburgh factors contemplate that a parent or child seeking contribution for college expenses will make the request before the expenses are incurred. . . . The failure to do so "will weigh heavily against the grant of a future application." . . . Regardless of whether it was [p]laintiff's fault for the decline in his relationship with [daughter], [d]efendant did not make an application for college contribution until a year after ]daughter] began college. . . . Based on the amount of time between [daughter's] first semester and the filing of this motion, and [d]efendant's inability to show that she or [daughter] specifically requested college contribution from [p]laintiff, [d]efendant's [m]otion is denied.

We agree with defendant, the motion judge's analysis of the Newburgh factors was flawed. Under Gac, delay is one factor that weighs against entry of an order compelling a contribution to post-secondary education. Gotlib, supra, 399 N.J. Super. at 309. Gac does not establish a bright line rule permitting automatic denial whenever a request is filed after educational expense has been incurred. Nor does a late claim for past college expenses preclude a claim for future expenses.

The Court in Gac applied the Newburgh factors, but struck a balance in favor of the party resisting contribution because the request was made after all the educational expenses were incurred and the child graduated from college. Gac, supra, 186 N.J. at 545-47. Gac, however, did not establish a test independent of the Newburgh factors, but rather made "a fair evaluation of the Newburgh factors," as well as the factors in N.J.S.A. 2A:34-23(a), in view of "the lateness of the application," to deny plaintiff's request for defendant's contribution to his daughter's college loans. Id. at 548.

Here, no such analysis was undertaken. Nor was there any attempt to flush out all the information necessary to properly and fairly evaluate the Newburgh factors. Unlike in Gac, supra, 186 N.J. at 546-47, defendant moved for contribution before the start of the daughter's fourth semester; the daughter's education was an ongoing process so that the identical lateness factor relied upon in Gac is absent here. See id. at 546-48.

We are convinced the trial court interpreted the Gac opinion in a very restricted way without recognizing the equitable considerations that underlie that decision. In so doing, the court failed to analyze each of the Newburgh factors, which was enunciated by the Court in Gac on a full record developed through a hearing. See Gac, supra, 186 N.J. at 539-40. We conclude the trial court was mistaken in not ordering a plenary hearing to address the dispute regarding plaintiff's involvement in, or exclusion from, the college selection process, as well as any other relevant factor in dispute, so as to permit the court to complete a proper Newburgh analysis. We leave it to the trial court to determine whether any discovery is necessary, and the extent of the plenary hearing required, for the court to complete its analysis, so that it may properly determine the college contribution issue.

Reversed and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.