Opinion
DOCKET NO. A-4466-13T3
02-17-2016
SUZANNE FERRARA (n/k/a SUZANNE WARNER), Plaintiff-Respondent, v. ANTHONY FERRARA, Defendant-Appellant.
Robert J. Kane argued the cause for appellant (Robert J. Kane, LLC, attorneys; Mr. Kane and Janet DelGaizo, on the brief). Edward S. Rosen argued the cause for respondent (Law Offices of Edward S. Rosen, attorneys; Mr. Rosen, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-0007-12. Robert J. Kane argued the cause for appellant (Robert J. Kane, LLC, attorneys; Mr. Kane and Janet DelGaizo, on the brief). Edward S. Rosen argued the cause for respondent (Law Offices of Edward S. Rosen, attorneys; Mr. Rosen, on the brief). PER CURIAM
The parties were married in May 1993 and divorced on March 26, 2001. They had one child, a girl who is now twenty years old and a fulltime student at Stevens Institute of Technology (Stevens Tech). In this appeal, defendant Anthony Ferrara seeks to have this court reverse the Family Part's decision directing him to pay a share of his daughter's undergraduate tuition and associated costs to attend Stevens Tech. His share is calculated proportionate to his gross income, as provided in the Property Settlement Agreement (PSA) the parties voluntarily entered into and incorporated as part of the final judgment of divorce. The trial judge also ordered plaintiff Suzanne Warner (f/k/a Ferrara), to pay her proportionate share of her daughter's educational expenses at Stevens Tech.
Defendant argues the trial judge erred by reaching this decision without conducting an evidentiary hearing or considering and applying the factors established by the Supreme Court in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), and subsequently codified by the Legislature in N.J.S.A. 2A:34-23(a). Defendant also argues the decision violated the "Education" provision in the PSA that obligates the parties "to consult with each other and with their daughter" and ultimately "agree on her choice of educational institution." As a corollary to these issues, defendant argues the trial court misapplied this court's holding in Jacoby v. Jacoby, 427 N.J. Super. 109 (App. Div. 2012), in determining the amount of his child support obligation.
Plaintiff argues the trial judge correctly applied the relevant legal principles and properly construed the provision in the PSA in reaching her decision. Plaintiff claims there was no need to conduct an evidentiary hearing because the record presented to the Family Part established defendant has an undisputed obligation to pay a proportionate share of the cost of his daughter's undergraduate education. Plaintiff argues defendant has also failed to support his daughter's educational aspirations by waging a campaign to undermine and belittle her academic achievements and discourage her desires to excel, as a means of evading his financial responsibilities under the PSA.
After reviewing the record developed by the parties before the Family Part and mindful of our standard of review, Cesare v. Cesare, 154 N.J. 394, 412 (1998), we affirm the trial judge's April 28, 2014 order permitting the parties' daughter to continue her studies at Stevens Tech and directing the parties to pay a proportionate share of the cost of their daughter's undergraduate education at Stevens Tech, based on their combined gross annual income of $243,746. The approach employed by the trial judge to reach her decision is grounded on the relevant provision of the PSA and is supported by the factors in N.J.S.A. 2A:34-23(a), as well as the policy considerations discussed by the Supreme Court in Gac v. Gac, 186 N.J. 535 (2006). We also affirm the trial judge's March 7, 2014 order denying defendant's motion to reduce his child support obligation.
I
The PSA was voluntarily entered into by the parties with the advice of their attorneys. This agreement comprehensively addresses and resolves all of the issues ordinarily associated with the dissolution of a marriage. Paragraph 11 of the PSA is denoted "EDUCATION." It describes the methodology for determining the parties' financial obligation to their daughter's post-secondary education:
The parties agree to contribute to their daughter's post-high school educational expenses in the same proportion as their respective gross incomes from all sources at that time, as verified by W-2 and 1099 forms and other methods of verification. They shall consult with each other and with their daughter, and shall agree on her choice of educational institution. Educational expenses shall include tuition, room, board, reasonable travel, activity fees, membership fees and reasonable living allowance, net of any financial aid for which the child qualifies and receives. (Emphasis added).
The emphasized language encapsulates the essence of the dispute in this appeal. The record before us shows defendant has not enjoyed a close relationship with his daughter. Although father and child attended court-ordered family counseling for a period of time, the effort to develop a closer relationship appears to have been unsuccessful. The voluminous record defendant presented in this appeal shows defendant has little if any personal interactions with his daughter.
At defendant's request on October 25, 2011, the Family Part ordered the child to attend psychotherapy counseling with her father. Plaintiff certified she did not oppose defendant's application. The therapist was not selected until December 2, 2011. Defendant and the child attended counseling sessions until approximately Christmas 2012.
In a certification submitted to the Family Part, defendant described how he discovered that his daughter, then in high school, "had been applying for jobs for quite some time and had accepted a job at PepBoys . . . putting in 24 hours per week." Defendant disclosed this information to the court as an explanation for his failure to attend psychotherapy counseling sessions. In defendant's words: "As a consequence, scheduling appointments became extremely difficult due to [his daughter's] work conflicts." The child was a junior in high school at the time.
Defendant accused plaintiff of manipulating the child to seek after-school employment as a means of frustrating the court-ordered counseling sessions. As proof of this alleged scheme, defendant noted the child stopped working "once the counseling stopped and [successfully] interfered [with] his relationship with his daughter." The child did not work during the summer of 2012. Despite this opportunity to resume counseling or explore other means of establishing a relationship with his daughter, defendant did not take any action to ameliorate his growing estrangement from his child.
The counseling sessions stopped at defendant's request.
Defendant also disputed before the Family Part plaintiff's claim that his daughter "had a significant interest in engineering." He alleged that "up to the second half of her [j]unior year, [of high school] she wanted to be a psychologist." Despite her acceptance at Stevens Tech, defendant argued that her "grades have been inconsistent and Stevens [Tech] is too far of a reach for her. I fear that she will not be able to keep up her grades."
In response, plaintiff alleged defendant had never taken an active interest in his daughter's academic achievements or provided positive reinforcement to encourage her to succeed. He has not visited her at campus; he has not arranged to have dinner with her; he did not congratulate her when she was accepted as an undergraduate student to an internship in the engineering department of Mercedes Benz. In contrast to defendant's negative assessment of his daughter's academic performance, plaintiff emphasized to the trial court that her daughter graduated with honors from high school after taking "advanced placement classes."
Plaintiff also took issue with defendant's claim that her daughter's interest in engineering was a recent phenomenon or an ill-conceived teenage fad. Plaintiff maintained her daughter was deeply committed to engineering as a career choice. However, as a matter of planning in the event she was not accepted by the school of her choice, plaintiff stated her daughter also applied to a number of institutions of higher learning that offered a wide spectrum of academic programs and professional pursuits. Her choices included colleges with a traditional liberal arts curriculum, as well as schools known for emphasizing technology and scientific studies.
Plaintiff certified that in addition to Stevens Tech, her daughter applied and was accepted by Manhattan College, Seton Hall University, New Jersey Institute of Technology, Drexel University, and Rowan University. Conversely, defendant points out, and plaintiff concedes, that she was rejected by Rutgers School of Engineering.
On June 10, 2013, plaintiff filed a motion seeking to compel defendant to contribute to their daughter's "college expenses" after her admission to Stevens Tech. Defendant filed a cross-motion seeking to compel his daughter "to attend a less expensive school, amongst other relief." (Emphasis added). We highlight this seemingly innocuous characterization of this aspect of defendant's motion because it reveals the deteriorated state of defendant's relationship with his then nineteen-year-old daughter.
There is no question that the parties view their daughter's academic potential very differently. Unfortunately, as noted earlier, the record before us also shows that defendant's relationship with his daughter has been severely damaged in the aftermath of the divorce, including the contentious post-judgment motion practice that followed it. We do not assign blame nor claim to have divined the cause for such a breakdown in the father/daughter relationship. However, we are bound to acknowledge the evidence that reveals the extent to which the traditional means a father uses to communicate with his child (i.e., a face-to-face discussion, a phone call, a note or a letter, or even an email or text), had been replaced by the litigation model of conflict resolution. This approach is probably the most ill-suited means of resolving family disputes, because it is rooted in the adversarial system of conflict resolution, a process through which one party wins and the other loses. Cf. R. 5:8-1 (requiring mediation in cases in "which the court finds that either the custody of children or parenting time issues, or both, are a genuine and substantial issue[.]"). Our children should not be viewed or treated as adversaries in a legal dispute about their educational goals.
The degree of defendant's estrangement from his daughter's life is exemplified by the part of defendant's motion that sought to obtain a court order compelling his daughter:
[To] provide to the defendant copies of her semester grades or in the alternative the parties' daughter to authorize the defendant to be able to obtain said semester grades directly from the registrar's office; [and]It seems axiomatic to us that this is the kind of information a father should be able to obtain directly from his daughter, without resorting to the coercive power associated with judicial intervention. Unfortunately, supplying this information must often be ordered in highly litigated cases such as this one. See Van Brunt v. Van Brunt, 419 N.J. Super. 327 (Fam. Div. 2010) (holding it does not violate the child's rights under the Family Educational Rights and Privacy Act, 20 U.S.C.S. § 1232(g) and 34 C.F.R. § 99.31 to require proof of the child's course credits and grades as a condition of ongoing college contribution).
[Direct] that the parties' daughter attend a lower cost college than Stevens Institute of Technology;
By order dated July 30, 2013, the trial judge found defendant's gross income for 2012 was approximately $208,814.00, consisting of $180,000.00 in gross compensation for hours worked and $28,715.00 in dividends and sales of stocks and bonds. The trial judge found plaintiff's income for 2012 was $20,568, consisting of $3362, as compensation for worked performed on an hourly basis, and $16,936 in unemployment compensation benefits. Despite this, the court granted defendant's motion to impute $60,000 annual income to plaintiff for purposes of determining her proportionate contribution to the child's education expenses. Thus, the parties' combined gross income for 2012 was $268,814.00. Based on these findings, and consistent with the PSA, the court determined the parties' proportionate responsibility for their daughter's education-related expenses for her first semester at Stevens Tech was 23% for plaintiff and 77% for defendant.
We note a $300 arithmetic error in plaintiff's total income for 2012. The court found plaintiff's 2012 income was $20,568, consisting of $3362 in hourly wages and $16,936 in unemployment compensation benefits. However, $3362 + $16,936 = $20,298, not $20,568, as the court found.
The court granted defendant's request "for access [to his daughter's] grades and progress in school." The court also ordered plaintiff "to obtain all information necessary to access [their daughter's] grades, class schedule, and financial aid information throughout her education and supply such [information] to [d]efendant, updating such information as necessary." Of particular note, the trial judge decided "to revisit" defendant's application to compel his daughter to attend a less expensive school "after completion of the fall 2013 semester." However, the trial judge unequivocally denied defendant's "request to compel [p]laintiff to compel [the child] to attend a different, less expensive school."
In a statement of reasons attached to the order, the judge provided the following explanation for her decision:
There is no doubt that the PSA assumed that the decision of where [the child] attends school would be made with input from [p]laintiff, [d]efendant, and [the child]. Such would seem to require proactive discusions between [p]laintiff and [d]efendant, not simply a relay of information through [the child]. This [c]ourt believes that both parties could have made a more concerted effort to engage the other in [their daughter's] college admission process. As [d]efendant is the non-custodial parent, however, the circumstances require more involvement on his part, simply because the custodial arrangement does not afford [d]efendant the luxury of daily interaction with the child. This [c]ourt emphasizes that [the child] should be actively involved in her own college application process, but the burden is not on her to make sure both parents are participating in the process. Plaintiff also should have . . . sought out [d]efendant's opinion on [their daughter's] options if [p]laintiff held an expectation that [d]efendant would contribute to the associated costs.
Having recognized the failure of both parties in abiding by the PSA, this [c]ourt will not impute consequences of such failure on [the child] by denying her attendance at
her chosen educational institution. Defendant's argument that [his daughter] lacks aptitude for Steven's Tech is without merit, as evidence by her acceptance to the institution, and academic success in recent years. Additionally, [the child's] dedication to her chosen area of study supports attendance at Steven's Tech over attendance at other institutions she may have been accepted to. This [c]ourt finds that poor performance in [the child's] freshman year, coupled with the cost associated with Steven's Tech, are together insufficient to completely deny [her] the opportunity to attend, and potentially excel at Steven's Tech. Whether or not [d]efendant has a continuing obligation to contribute the lion's share of [his daughter's] costs at an unquestionably expensive school will depend on [the child's] performance. Defendant shall contribute as detailed above for [his daughter's] first semester. Continued contribution will be conditioned on [the child's] maintenance of a C average or higher. Therefore, plaintiff's request for contribution towards [the child's] college costs is GRANTED in part. (Emphasis added).
Ten days after trial judge's decision, defendant sent plaintiff an email dated August 9, 2013, informing her that based on "substantial reductions in our income . . . [i]t does not appear we will be able to continue to send [our daughter] to Stevens." Defendant also apprised plaintiff that he has communicated his position on the subject to their daughter. Defendant then described to plaintiff the steps he deemed were necessary to implement his unilateral decision. He concluded the email with the following statement:
Please let me know when you want to discuss the schools to which [our daughter] should apply. So that [the child] is not under undue pressure, we should complete our decision prior to September 1, [2013], so that [the child] has the maximum amount of time to complete the process with as little stress as possible.
In a letter dated August 29, 2013, sent by defendant's attorney to plaintiff's attorney, defendant dispelled any ambiguity about his unwillingness to contribute to the cost of having his daughter attend Stevens Tech:
My client did not, does not, and will not consent to [his daughter] continuing at Stevens. It is a financial reach, and given that my client's employment has been terminated, he cannot afford these costs. (Emphasis added).
Defendant's unilateral decision to disregard the court's July 30, 2013 order prompted plaintiff to file a motion to enforce litigant's rights returnable on October 11, 2013. Defendant responded by filing a cross-motion seeking enforcement of the court's July 30, 2013 order. Although captioned as an enforcement of the previous order, defendant sought injunctive relief compelling plaintiff to meet with him "to discuss, in good faith, alternative colleges for their daughter to attend for the Spring Semester, 2014." He also sought a court order "requiring" his daughter "to complete a new application, re-apply, or reactivation of prior applications . . . to those schools agreed upon by the parties." Defendant also sought court-ordered mediation in the event the parties were unable to reach an agreement on this issue. If mediation failed to produce the outcome defendant desired, defendant requested the court to conduct a plenary hearing "to decide the issue of college attendance."
By order dated October 25, 2013, the trial judge granted plaintiff's motion to enforce litigant's rights and ordered defendant to pay a total of $7495.27 to plaintiff within ten days of the date of the order. The trial judge also directed defendant to continue to pay his 77% share of all future expenses, including "allowance and commuter expenses as they become due as long as [his daughter] maintains a minimum grade level of 'C' or above." The court denied all of defendant's request for relief. The trial judge found "moot" defendant's request to have the child apply for financial aid because the child had applied and received financial aid from Stevens Tech. The trial court denied both parties' applications for an award of counsel fees incurred in connection with these motions.
This figure represented defendant's 77% share of his daughter's room and board and tuition costs to attend Stevens Tech for the months of August, September, October, and November 2013.
On March 19, 2013, the Director of Financial Aid of Stevens Institute of Technology notified the parties' daughter that she had been awarded a total of $23,500 in financial aid for academic year 2013-2014. The estimated cost to attend the Institute, including tuition, room and board, books and supplies, and miscellaneous expenses was $62,413. Thus, the parties were expected to pay approximately $38,913. The letter also apprised her that the financial aid was conditioned upon her making "satisfactory academic progress."
On December 6, 2013, defendant moved to stay the trial court's October 25, 2013 order "pursuant to the provisions of Rule 2:9-5," pending the outcome of an appeal to this court. Plaintiff cross-moved again requesting the court hold defendant in violation of litigant's rights and compel defendant to pay his share of his daughter's 2014 spring semester tuition. The trial judge denied defendant's motion for a stay, and granted plaintiff's cross-motion "in its entirety." Specifically, the trial judge ordered defendant "to pay $14,902 representing his proportionate share of tuition, room and board and expenses for the child of the marriage within ten (10) days of the date of this Order."
The court denied plaintiff's request to incarcerate defendant until he reimbursed the $14,902 she was forced to pay to secure her daughter's status as an undergraduate student at Stevens Tech. Instead, the Judge ordered defendant to pay his 77% share of tuition and room board for both the spring and fall semesters of 2014 within ten days of December 6, 2013. The judge also reaffirmed the child's obligation to maintain a "C" average or higher as a condition of her continued attendance at Stevens Tech. Finally, the court once again denied plaintiff's application for counsel fees.
In the Civil Case Information Statement filed in response to defendant's pending appeal to this court, plaintiff stated the appeal was interlocutory because the trial court had not at that time addressed the issue of child support. By order dated January 6, 2014, this court granted defendant's request to dismiss the appeal.
On February 28, 2014, defendant once again moved to have the court declare plaintiff in violation of litigant's rights "for her failure to meet with defendant to discuss the parties' daughter's future college pursuant to paragraph 1 of the court's order of July 30, 2013 and paragraph 8 of the court's order dated October 25, 2013." We are bound to note the incongruity of defendant's request. Paragraph 1 of the order entered by the trial court on July 30, 2013 granted plaintiff's request to compel defendant to contribute to his daughter's educational expenses. Paragraph 8 of the order entered by the trial court on October 25, 2013, denied defendant's request to compel his daughter to apply to different colleges for the spring 2014 semester.
Overlooking this incongruity, plaintiff responded to defendant's application and filed a cross-motion seeking to enforce litigant's rights for a third time. Plaintiff sought an order again directing defendant to pay his proportionate share of his daughter's 2014 spring semester tuition and related costs, which amounted to $6860.70. Plaintiff again requested the court to order defendant to pay the counsel fees she incurred in rebutting defendant's latest motion, as well as the fees associated with affirmatively seeking enforcement of the relief the court had ordered on three prior occasions.
By order dated February 28, 2014, the trial judge again denied defendant's request to hold plaintiff in violation of litigant's rights. However, despite her repeated and consistent orders reaffirming the child's right to attend Stevens Tech, the judge granted defendant's request "that [p]laintiff meet with him to discuss where the child of the marriage shall attend college in the fall." Citing paragraph one of the order entered on July 19, 2013, the trial judge held that after the child's first semester "either party may petition the court for relief should the parties failed to agree on where [the child] should go to school."
The February 28, 2014 order further directed the parties to arrange to meet within thirty days, and reserved for the court the authority to decide where the child would attend school in the fall of 2014, "should the parties fail to agree on where the child . . . shall attend college and determine the allocation of costs." In the event they failed to agree, the court directed the parties to submit updated Case Information Statements, tax returns and W-2s from 2013, and three recent paystubs. However, the court continued to order defendant to pay his 77% share of his daughter tuition at Stevens Tech, including an additional $232.15 representing his proportionate share of book expenses.
The court's citation to paragraph one of the July 19, 2013 order as authority for defendant's belated petition to re-litigate the arguments the trial judge had up to this point consistently rejected, is not persuasive. There is nothing in the language of paragraph one of the July 19, 2013 order that supports a reexamination of the core question that had driven this contentious post-judgment motion practice: to wit, where and what kind of college should this young woman attend? We acknowledge defendant's undaunted resistance of every order issued by the trial court. However, from the record developed up to this point, the young woman in the eye of this storm had a reasonable expectation that she would be attending Stevens Tech because she had met all of the court's conditions. She had completed her first semester maintaining a grade point average of "C" or higher; and she had solicited and obtained significant financial aid, including grants.
Young people experience enormous pressure and anxiety during their first semester at college. For many of them, this is the first time they are away from home. The parties' daughter's adjustment to college was compounded by the need to meet the high academic standards associated with the intellectually rigorous curriculum of a school of the caliber of Stevens Tech. The fact that this young woman navigated her way to success, overcoming not only the pressures and anxiety commonly experienced by her peers, but the added pressure of her parents' contentious legal battle, is truly remarkable. --------
We do not dispute a trial judge's right to direct the parties to submit updated financial information if the court is satisfied the requesting party has met his or her burden of establishing a prima facie case of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 151 (1980). The trial judge did not make such a finding in her February 28, 2014 order. However, this aspect of the February 28, 2014 order ultimately proved to be legally inconsequential.
After reviewing the updated financial information submitted by the parties, and consistent with the provision in the PSA that specifically memorialized the parties' wishes to have their daughter pursue a college education commensurate with the parties' financial resources, the trial judge decided "that the child of the marriage . . . shall continue her studies at Stevens Institute of Technology." The judge found:
The fact is that [the child] is doing quite well at Stevens Institute of Technology, evidenced by her grades and securing an internship with Mercedes Benz. Although [d]efendant was not kept in the loop on where [his daughter] was considering attending, it does not seem fair or in the best interest of [the child] to force her to transfer to a less expensive school. Defendant's argument that [the child] is succeeding solely to spite him is unpersuasive. For whatever reason [the child] is succeeding at Stevens Institute of Technology, it is clear that she is motivated to do well and that she should continue her studies where she is.
Of particular relevance, the court noted that defendant's financial information showed he reported a gross income in 2014 of $183,746. Adding plaintiff's imputed income of $60,000, the parties' combined gross income in 2014 was $243,746. Consistent with the PSA, the trial judge determined defendant's proportionate share of his daughter's educational expenses was 75%, while plaintiff was responsible for the remaining 25%. The trial judge also directed the child "to apply and accept all financial aid offered by or available through Stevens Institute of Technology." Finally, applying this court's holding in Jacoby, supra, the trial court denied defendant's application to reduce his child support obligation.
II
Our standard of review is well-settled. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding" and conclusions that flow logically from those findings. Cesare, supra, 154 N.J. at 413. Family Part judges are entitled to this deference because the unique jurisdiction of the court requires them to acquire a distinctive sensitivity to the issues raised by the parties in this appeal. See J.D. v. M.D.F, 207 N.J. 458, 482 (2011).
We start our analysis by noting Justice Wallace's admonition in Gac:
Once divorce enters the picture, any effort to gauge how parents would have reacted to educational expenses if they had remained married is fraught with uncertainty.
. . . .
Unique problems arise when parents divorce. The heightened economic concerns and animosity that may develop as part of the divorce process in all too many cases may influence a parent's viewpoint as to how he or she would have acted if the family had remained together.
[186 N.J. at 544-45.]
This trepidation is tempered here by the PSA, which contains the parties' expressed desire that their daughter should receive post-secondary education, even after the dissolution of their marriage. The "Education" clause in the PSA makes clear that each parent is obligated "to contribute to their daughter's post-high-school educational expenses in the same proportion as their respect gross incomes [.]" The PSA was negotiated and executed by the parties at a time when they were both represented by counsel. There is nothing in the record that impugns its enforceability on the basis of traditionally recognized contractual defenses such as unconscionability, fraud, or overreaching in negotiations of the settlement. Absent these grounds, a trial court has "no legal or equitable basis . . . to reform the parties' property settlement agreement." J.B. v. W.B., 215 N.J. 305, 326 (2013) (quoting Miller v. Miller, 160 N.J. 408, 419 (1999)).
Although subject to modification when there are material changes in circumstances, Lepis, supra, 83 N.J. at 146-48, courts in this State have long recognized the contractual nature of a PSA. Pacifico v. Pacifico, 190 N.J. 258, 265 (2007). When asked to construe a particular section of a PSA, the court's function is to enforce the original intent of the parties. Id. at 266. Here, defendant did not ask the trial court to modify the PSA. Defendant claims plaintiff and his daughter violated the intent of the "Education" clause of the agreement by excluding him from participating in the decision making process about which college she would attend.
In Newburgh, supra, our Supreme Court established the following non-exhaustive twelve factors a court should consider in evaluating a claim for contribution toward the cost of higher education.
(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.
[88 N.J. at 545 (emphasis added).]
As Justice Wallace noted in Gac, in 1988, six years after the Court's decision in Newburgh, "the Legislature essentially approved those criteria when amending the support statute, N.J.S.A. 2A:34-23(a)." Gac, supra, 186 N.J. at 543. The factors we have highlighted are the ones most relevant to the issues raised by defendant in this appeal. In our view, the trial court's April 28, 2014 order and statement of reasons correctly considered and applied the financial criterion the parties established in the Education clause of the PSA.
With respect to Newburgh factor eleven, "the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance," the record shows that up to this point, defendant has been the architect of his own exclusion from his daughter's life. The multiple certifications defendant submitted in support of his repeated attempts to redirect his daughter's educational goals were replete with needlessly strident language questioning her intellectual abilities.
In Gac, Justice Wallace noted that "[a] relationship between a non-custodial parent and a child is not required for the custodial parent or the child to ask the noncustodial parent for financial assistance to defray college expenses." Id. at 546. Here, the language in the "Education" clause of the PSA is both clear and emphatic: "They shall consult, and shall agree on her choice of educational institution." (Emphasis added). Consultation and agreement should be the guiding principles of this uniquely special family decision.
A Family Part Judge has "substantial discretion" in deciding the issue of contribution to college expenses. Jacoby, supra, 427 N.J. Super. at 116. We will not interfere with a judge's contribution award unless the record shows the decision was manifestly unreasonable, arbitrary, or clearly contrary to the evidence. Ibid. However, if the record shows the judge ignored the relevant applicable standards, "we are compelled to reverse and remand for further proceedings." Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008).
At this stage of her life, the parties can offer advice and emotional support to their daughter. The bilateral nature of this contract requires the parents to honor their financial commitment consistent with the standard set forth in their PSA. The child has the commensurate obligation to pursue the educational opportunity her parents have provided her by carrying out her academic responsibilities to the best of her abilities. The trial court followed this approach in her April 28, 2014 order. We discern no legal basis to interfere with or otherwise modify the judgment of the Family Part.
Finally, we affirm the order denying defendant's application to reduce his child support obligation for the reasons expressed by the trial judge. As we made clear in Jacoby, supra, "there is no presumption that a child's required financial support lessens because he or she attends college." 427 N.J. Super. at 113. Defendant has not established grounds warranting a reduction in his child support obligation.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION