A-0LAURA MOFFITT v. GUY MOFFITT August 25, 2015

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LAURA MOFFITT,

Plaintiff-Respondent,

v.

GUY MOFFITT,

Defendant-Appellant.

________________________________________________________________

August 25, 2015

Submitted August 5, 2015 Decided

Before Judges Reisner and Espinosa.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1882-02.

Guy Moffitt, appellant pro se.

Laura Moffitt, respondent pro se.

PER CURIAM

Defendant appeals from an order that required him to pay 81% of the Stafford and Perkins loans taken out by the parties' daughter for her college education. We affirm.

The parties were divorced in May 2003. Their dual final judgment of divorce (JOD) provided in relevant part

IT IS FURTHER ORDERED that the parties have agreed . . . to divide the cost of [college or post-high school education for the children,] 80% to be paid by defendant and 20% to be paid by plaintiff. The parties further agree the child shall apply for all available grants, scholarships, financial aid, etc., as part of the child's obligation and they shall each reasonably assist with said process. The child may not be enrolled in school without prior notice to the other parent who shall not unreasonably withhold consent. One of the basis [sic] for reasonably withholding consent can be the cost of said school. The parties shall also consider the child's wishes in selecting the school. The parties acknowledge that there were certain funds called Pilgrim funds[,] approx[imately] $8000.00 for each child[,] that were maintained for the children. The parties have agreed to first apply what is in those funds for the cost of college before their respective 80/20 split of the cost. The defendant shall provide plaintiff with a yearly accounting of those funds to ensure that they have been maintained and not invaded.

A supplemental order was entered in April 2008 that modified the percentages of the parties' obligation toward college expenses based upon their gross weekly income. As a result, defendant's obligation was calculated to be 81% and plaintiff's obligation was set at 19%. Defendant attempted, unsuccessfully, to reduce his obligation thereafter.

In September 2013, plaintiff filed a motion to compel defendant to pay 81% of the Stafford loans and Perkins loans taken out by their daughter. In support of her motion, plaintiff submitted a certification which, in part, stated the following.

At the time of their divorce, it was not the parties' intention that their children obtain loans to pay for college. After their daughter applied for financial aid from Fordham, the parties contacted the school to learn how the amount of financial aid was determined. The financial aid officer explained that "when no loans are taken it does not show a financial need." The parties were informed that if their daughter applied for Stafford and Perkins loans, an appeal could be filed on an annual basis requesting additional aid.

Plaintiff described defendant's response

The Defendant came to Plaintiff's home and the parties[] stated to their daughter that they each would pay their share of these loans when the loans become [sic] due. The Defendant stated that he would pay his share in a lump sum when due so not to pay any interest on the loans. . . . The Defendant stated that it was a "win-win situation" as the school would give us more money, and the loan amounts was [sic] a deferment in payment, as they wouldn't need to be paid until after graduation. The loans were taken and the appeal was filed. The appeal resulted in an additional $4,100 in aid given by Fordham.

However, plaintiff certified, defendant did not respond to their daughter's request for his share of the loan payments when they fell due. In her certification, she stated that defendant's share was $12,625 of the Stafford loans and $4500 of the Perkins loans.

In response to plaintiff's motion, defendant did not refute plaintiff's description of his agreement to pay his share of the loans. However, he maintained he had no legal obligation to pay for any part of the loans taken by their daughter. He repeatedly referred to plaintiff's effort to secure his contribution as a "contrivance," stating plaintiff had no legal standing to sue him for his contribution since the debt was their daughter's and not the plaintiff's.

By order dated November 15, 2013, the motion judge granted plaintiff's motion and stated that to the extent defendant's response was intended to be a cross-motion, it was denied in its entirety. The order set forth a payment schedule for defendant and stated that failure to comply may result in the issuance of a warrant for his arrest.

In this appeal, defendant presents his arguments in the form of questions

POINT I

IS IT PERMISSIBLE UNDER NEW JERSEY LAW FOR A MOTHER TO BRING AN ACTION AGAINST AN EX-SPOUSE TO ENFORCE A DEBT INCURRED BY THE CHILD OF THE MARRIAGE?

POINT II

IS IT PERMISSIBLE UNDER THE NEW JERSEY COURT RULES FOR A MOTHER WHO IS NOT LEGALLY RESPONSIBLE FOR THE DAUGHTER'S INCURRED DEBT TO BRING AN ACTION AGAINST HER EX-SPOUSE WHEN THE COURT CONSIDERS NO TESTIMONY FROM THE DAUGHTER?

POINT III

IS IT PERMISSIBLE UNDER NEW JERSEY LAW FOR THE TRIAL COURT TO ENTER A DECISION THAT EFFECTIVELY, WITH NO CHANGE IN CIRCUMSTANCES, RE-WRITES THE JUDGMENT OF DIVORCE?

POINT IV

IS IT PERMISSIBLE UNDER NEW JERSEY LAW FOR THE TRIAL COURT TO ACCEPT A MOTION FROM PLAINTIFF THAT IS MISSING NOT ONLY ITS CERTIFICATION OF MAILING FORM BUT ALSO ANY EVIDENCE OR STATEMENT OR OFFER TO TESTIFY FROM THE ADULT, EMANCIPATED DAUGHTER WHO'S [sic] DEBT WAS THE SUBJECT OF THE MOTION?

Defendant's contentions lack merit. The order entered here did not re-write the parties' JOD; it enforced a term agreed upon by the parties. It was agreed that their children would "apply for all available grants, scholarships, [and] financial aid" and that the parties would divide the remaining cost of education. Although defendant argues he did not sign any document that required him to make his proportional contribution to the payment of college loans, he also has not disputed key facts in plaintiff's certification: that Fordham advised them that the amount of financial aid could be increased if their daughter obtained loans; that he agreed to this "win-win" situation and also agreed to pay his share in a lump sum when due. The parties agreed in their JOD to divide the cost of their children's college education on a proportional basis and defendant does not challenge the consensual nature of that provision. The college loans are part of the cost of college that defendant agreed to divide with plaintiff. Therefore, plaintiff had standing to enforce that provision of the JOD for the benefit of their daughter. See Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006) (noting "a parent can bind himself or herself by consensual agreement, voluntarily and knowingly negotiated, to support a child past majority, and such agreement is enforceable if fair and equitable").

Affirmed.