Posted on March 2, 2010 by Sandra C. Fava

COLLEGE TUITION - WHO PAYS?

Post-judgment motions are common in family law, especially when it comes to paying for college tuition for the children of the divorced parties. Often times, older Property Settlement Agreements ("PSA") are ambiguous when it comes to which parent will pay a child’s college tuition. As was the situation in the recent unpublished decision in Orero v. Orero, App. Div., docket no. A-2230-08T3, decided on February 19, 2010.

The Orero’s were married in 1987 and divorced in 1996. In 1996, the parties entered into a PSA where they agreed that if the children were to attend college each party shall contribute “to the best of their ability.” Well fast forward 13 years and their oldest daughter is about to begin college in Colorado. Now, Mrs. Orero seeks Mr. Orero to contribute half of the daughter’s college expenses. Mr. Orero alleges that he was (1) not consulted regarding the daughter’s choice of schools, (2) doesn’t have the ability to pay because he has children from another marriage, and (3) if he must pay, than he is entitled to a plenary hearing (similar to a trial) to determine the relevant facts. As a result, Mrs. Orero files a motion with the court seeking to enforce the PSA. Notwithstanding Mr. Orero’s arguments, the trial judge ordered Mr. Orero to pay half the college expenses. Mr. Orero filed a motion for reconsideration, which is denied. So Mr. Orero appeals.
 

After hearing the arguments of both parties, the Appellate Division affirmed the denial of defendant's motion for reconsideration and granted plaintiff's motion to compel defendant to contribute to the costs of their daughter's college education based on its findings, among other things, that (1) there were no factual disputes that required a plenary hearing; (2) the language in the parties' property settlement agreement required defendant to contribute to his daughter's college expenses to the best of his ability, not if he believed he had the ability to do so; and (3) Mr. Orero must pay, notwithstanding he simply does not approve of her selection of an out-of-state school.

When dealing with older or ambiguous PSA’s attorneys must advise, and clients must understand, that “the court’s role is to consider what is written in the context of the circumstances at the time of drafting and to apply a rational meaning in keeping with the expressed general purpose” of the PSA.
 
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Posted on December 28, 2009 by Robert A. Epstein

A PARENT'S OBLIGATION TO PAY FOR POST-HIGH SCHOOL EDUCATION

What payment obligation, if any, do divorced parents have towards their child's post-high school education?  The New Jersey Supreme Court concluded more than 25 years ago that a child's right to support includes a "necessary education" after high school, whether it be a vocational school or college.  However, a parent's obligation to pay for such schooling depends generally on the expectations and abilities of the parties involved to pay, as set forth in 12 different 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.

 

Notably, these factors contemplate that the parent or child seeking payment towards educational expenses will be made before the expenses are actually incurred.  The Appellate Division addressed this timing issue in the recent unreported (not precedential) decision of Gorman v. Cruz, where it reversedd a trial court's denial of a mother's application to compel payment by the father for the daughter's beauty school because the child failed to apply for school costs from the father until the costs had already been incurred and paid.

Reversing the trial court's decision, the Appellate Division noted that delay in seeking payment from the parent is only one factor for consideration and by no means warrants an automatic denial.  The father had already contributed to the cost of the school, demonstrating his approval, or at least acquiescence towards his daughter's decision to obtain her cosmetology education, as well as his ability and willingness to pay.  The Appellate Division also rejected the father's argument that he was only obligated to pay for college - not a "technical" school like beauty school - relying on a rational construction of the terms of the parents' matrimonial settlement agreement as to the children's education and its general purpose to support the children in pursuing their career goals. 

As this case demonstrates, a thorough review of the 12 factors above, as well as the timing of the payment request, is necessary to determine a parent's obligation to pay for post-high school education costs.   
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Posted on December 10, 2009 by Eric S. Solotoff

I DON'T HAVE TO PAY FOR MY KID'S GRADUATE SCHOOL, DO I?

New Jersey is one of the few states in the country that still requires divorced parents to pay for their children's higher educations.  The term "divorced parents" is highlighted because married parents do not have the same obligation to pay for their children's college education if they choose not to do so.  This distinction has lead some to argue that New Jersey's laws are unconstitutional.  That is the topic for another day.

That said, the answer to the questions posed in the title of this post is maybe.  That is, parents of divorced children may not only have to contribute to their children's college educations, but graduate school as well.

That was one of the topics of an unreported (non-precedential) case decided by the Appellate Division on December 10, 2009.  Specifically, in the case of Mulcahey v. Melici, the Appellate Division affirmed the trial court's decision not to emancipate the parties' child who had graduated from college, require the payment of child support to continue and requiring the payment of graduate school expenses.

The issue regarding contribution to graduate school became moot but the appeal followed anyway.  The Appellate Division noted that:

As to the continuation of her education, the judge concluded that the daughter demonstrated "the aptitude and motivation for graduate school study." He also concluded that the parties were able to contribute, although that determination was rendered moot by the daughter's securing financial assistance.

Though not mentioned in this case, if one or both parents have graduate degrees, that is a factor that could suggest the payment of graduate school for the children if the financial ability to pay was present.  On the other hand, I have actually heard a judge, now retired, rule from the bench that he believed that he owed his children a college education, and anything beyond that was on them, when denying one parent's application to compel the other to pay for law school for the parties' child. 

The bottom line is that graduation from college may not be the proverbial "light at the end of the tunnel" ending a divorced parent's support obligation.
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Posted on August 14, 2009 by Sandra C. Fava

WHO PAYS FOR WHAT? SANCTIONS AND THE OBLIGATION TO CONTRIBUTE TO COLLEGE

Previously I have blogged on both the issue of sanctions assessed by a court against one party in a divorce or post divorce matter and also the obligation to contribute to the costs of a college education for a child and to what extent.

These issues are often addressed to the Appellate Court of New Jersey as in many family law matters they are topics hot for debate.  Most recently, the Appellate Division in the unpublished decision of Hikes v. Hikes, Decided August 13, 2009, Docket No. A-6642-06T2 addressed both the issue of sanctions and the payment of college for a child.

Sanctions may be requested by a party or  granted by a court on its own in a situation where one party acts in extreme bad faith or is non-compliant.  Sanctions can be viewed as a sort of punishment for that extreme bad faith or non-compliance.  This is especially so when the other party acts in good faith and is complaint. 

In the Hikes matter, which stemmed from the ex-husband's post divorce application to terminate his alimony responsibility based upon his interpretation of language in their Settlement Agreement, the trial court found that the Husband acted in extreme bad faith by his continued refusal to comply with discovery requests and Court Orders. The judge also found him completely lacking in credibility on several issues. As a result of those findings, the trial judge imposed a $100 per day sanction as reasonable. These sanctions totaled $212,400. The trial judge further found that defendant had the ability to pay this amount.

On appeal, the Court held that defendant was entitled to remand on the $212,400 sanction. The Court found that the trial judge premised his sanctions Order primarily upon his unfavorable assessment of defendant's credibility. The Court noted it did not "necessarily take issue with that assessment", but held it was unclear from the record whether and when defendant ever complied with the production of the ordered discovery.

As for the college issue, this case is distinct in that by way of an Order dated February 10, 1999, the trial court declared the child emancipated as of June 30, 1996 and denied plaintiff's request for contribution towards the child's college costs. The judge then denied plaintiff's motion for reconsideration of those issues. Plaintiff appealed from those Orders and the Appellate Division reversed and remanded for a plenary hearing. Thereafter, the parties both got ill and the matter was dismissed without prejudice until they were healthy enough to resume addressing the issues.

The factors a court must consider when determining a parties' obligation to contribute to college expenses was set forth in Newburgh v. Arrigo, 88 N.J. 529 (1982) and were subsequently codified by statute at N.J.S.A. 2A:34-23(a) as follows:

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 parties.

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 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.

12. The relationship of the education requested to any prior training and to the overall long-range goals of the child.

In June 2007, a three day plenary hearing was held to determine the issues. As a result of that hearing, the trial judge determined the child emancipated as of August 2004 (the day he graduated from Kean University). The trial judge also found that defendant would have paid for the child's college expenses had he still been living with the family based upon evidence that the parties had paid for an older sibling's college expenses. Lastly, the trial judge found that defendant should be responsible for all of the child's college expenses and that he had the ability to pay those expenses given the value of his financial assets.

Defendant appealed those findings. The Appellate Division affirmed the trial court's findings on this issue. In doing so the Court held that while attending college, the child lived either at home, in a dorm or in off campus housing, all paid by plaintiff. Further, the Court found that plaintiff paid for the majority of the child's college expenses. Given the child's need for financial help to attend college and his dependence upon his mother for support, the trial judge properly concluded that the child was not emancipated until he finally achieved his goal of college graduation. Plaintiff provided documented proof of the expenses she paid on behalf of the child. The trial judge properly found that as a "financially capable parent[]", defendant has the obligation to reimburse plaintiff for those expenses.
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Posted on June 29, 2009 by Sandra C. Fava

TO EMANCIPATE OR NOT TO EMANCIPATE- THAT IS THE QUESTION

Despite what people often think are iron-clad agreements, foolproof from any misinterpretation, despite best efforts, that may not always be the case.  One area that has been given significant recognition for interpretation by our courts is the area of what constitutes emancipation of a child.

This issue was recently addressed in the unpublished Appellate Court opinion, Zingone v. Zingone, decided June 1, 2009, A-0078-08T1.   Generally, a parent has no obligation to support an emancipated child.  So what constitutes emancipation?

The Supreme Court of New Jersey has held that emancipation can be found when a child marries, joins the military, reaching of an appropriate age, and when a court orders him/her so based upon the child's best interests.  Just because a child turns 18 years old only establishes prima facie, not conclusive proof.  Whether a child is emancipated at 18 years old depends on the facts of the case.

So what does the court look at? The most important inquiry is whether the child has moved beyond his or her parents' sphere of influence and responsibility and has obtained independent status.  To make this determination, one must look at the child's needs, interests and independent resources as well as the family's expectations and the parents' financial ability.

However, if an agreement remains vague as to a triggering emancipation event, as the plaintiff argued in Zingone above, courts will often refer to public policy, which in modern times, encourages a college education, especially where a child shows scholastic aptitude and the parents are able to afford it.

In New Jersey, our highest Court has recognized that generally, financially capable parents should contribute to the higher education of children who are qualified.  Even in cases where a child may take a brief break from college, during which time he or she is working full-time, our courts have held that that child is not emancipated because he or she has not yet moved beyond their parents' sphere of influence.

These cases are often extremely fact specific and require examination of several factors before an individual can determine whether or not their child may be emancipated under the laws of this state such that relief from financial obligations would be successful.

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Posted on May 13, 2009 by Jennifer Weisberg Millner

Poor Relationship with Parent not enough to Deny College obligation

The issue of relationships between parents and children when determining allocation of college expenses is often a complicated one. I have had many post divorce clients, usually non-custodial clients, discuss their frustration with the lack of involvement that they have had in the selection of college for their sons or daughters but are expected to pay a significant portion thereof. They feel as if the are simply “a wallet.” The recent unreported Appellate Division decision of Miller v. Tafaro brought this to mind.

In Miller, the father had been estranged from his children for many years following the parties’ divorce. When the mother asked the court to enforce the Property Settlement Agreement as to the payment of college expenses, the father said that he should not have an obligation to pay as he did not have a relationship with the children. The Court noted that as this was but one factor for consideration by the court, and, given that the lack of relationship over the years with the children was a result of the father’s actions, the trial court’s decision that the father was obligated to pay a portion of college expenses was affirmed.

Our Courts have set the factors to be considered when determining a parent’s obligation for college expenses. These are: (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 the 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 ability 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.

 

Each of these factors are important and none are necessarily more significant than others. Rather, it is the entire picture that must be looked at when assessing expenses. Each set of facts are different. Yet, I believe that it is important for divorced parents to be aware of these factors as they begin the college selection process with their children and former spouses. It can make a significant difference in the ultimate resolution of expenses if you wind up in Court.
 

 

EDITOR'S NOTE:  While the relationship is one of the factors to be considered and there are cases that discuss it at length, more often than not, court's will go out of their way to find an obligation to pay for college in New Jersey. 

New Jersey is in the minority of states at this point that requires parents of divorced children (but not intact families) to pay for college for their children.  in many states, this has been raised as a constitutional issue.  The constitutional argued was raised in the New Jersey Supreme Court case of Gac v. Gac but the Supreme Court failed to decide the issue, as it was able to decide the issue on other grounds.  I suspect that one day, the direct constitutional argument, i.e. why are children of divorce treated differently than children of intact families, will be brought again to the Supreme Court to decide this thorny issue.   ERIC S. SOLOTOFF
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Posted on January 17, 2009 by Sandra C. Fava

EMANCIPATED OR NOT?

In many divorce matters, attorneys, clients and judges alike must determine how to deal with the issue of support for children, oftentimes which includes the divvying up responsibility for payment of college expenses.

There is a large body of case law in New Jersey that deals with this very issue and provides guidance as to how a court should decide the issue of payment of towards college, if parties cannot come to an agreement on their own.  However, each case is fact sensitive and must be considered on its own merits.

In a recent unpublished Appellate Division decision entitled Novy v. Novy, A-4207-07T2, decided January 12, 2009, the Court remanded the issue of whether a child was in fact emancipated and not entitled to financial support from her parents towards the cost of her college education.

Mother and father were divorced in 2001.  Incorporated in their Property Settlement Agreement was the requirement for father to pay child support to mother until the children were emancipated.  The Agreement went on to state what would be deemed an emancipation event such that same would trigger the termination of father's support obligation for that child.

The parties' daughter has experienced mental health and personal adjustment problems for many years. She didn't graduate high school but later earned her GED. She has been attending Ocean County Community College since fall 2006.  At the same time she began college, she moved out of her mother's home and into the home of a friend's family.

In July 2007, father filed a motion with the court seeking to have daughter emancipated based on her residence away from her mother and her failure to attend college as is delineated in the Agreement reached by the parties.  That application was denied, however the court did rule that if daughter failed to make continuous progress toward the completion of her college education, including registering and completing not less than 12 credits/semester, father's obligation to support her would terminate.

Some 6 months later, father and mother entered into a Consent Order, which declared that both parties agreed daughter was emancipated and father's support obligation was terminated.  Shortly after this agreement was reached, daughter filed her own motion with the court seeking to intervene and vacate the Order declaring her emancipated.

Father was the only one who opposed this application and in his Certification he set forth several allegations upon which he determined daughter to be emancipated.  Daughter, in her responding Certification denied these allegations.  The trial court granted daughter's motion to intervene and vacated the Consent Order into which her parents entered and agreed that she was emancipated.

Father appealed that Order.  On appeal, the Appellate Division noted that the determination of whether a child was emancipated depended on the facts of each case.  Furthermore,it has already been determined by the Appellate Division that "merely because both parents are united in their determination to declare the child emancipated" may not defeat the child's right to support.  Johnson v. Bradbury, 233 N.J. Super. 129, 136 (App. Div. 1989).  The Court noted that the essential question to be answered is whether the child has "moved beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own."  Fillipone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997).

Because the trial court heard no testimony about the disputed facts relevant to daughter, the Appellate Division held that the trial court erred in failing to conduct an evidentiary hearing to resolve those contested facts and remanded to the trial court to conduct such a hearing. 

Despite the agreement reached by and between mother and father that daughter is now emancipated, father may still have a duty to provide financial support for daughter, to be determined by the outcome of the plenary hearing.  While daughter had no say in the original agreement reached by her parents and in the Consent Order they later entered into, she did have the right to file an application with the court on her own behalf seeking relief from the obligation that arises out of the parent-child relationship.  A child's right to support cannot simply be contracted away by that child's parents.  Parents have an obligation to support their children and in NJ this duty of support may include payment for college.

 

 

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Posted on April 29, 2008 by Jennifer Weisberg Millner

College Expenses: Who pays?

It’s that time of year. High School seniors all over the country are making that agonizing decision, “Which college should I go to?”  While the kids are choosing schools, parents are thinking, “how will I pay for it?” Financing college is a challenge in the best of circumstances, but for families in which parents are divorced or separated, the issues become particularly difficult. 

New Jersey courts will, in appropriate circumstances, compel both parents to contribute towards the college or vocational educational expenses of their child. This is in recognition of the fact that in today’s day and age, a college or vocational education is becoming a necessity. In the absence of an existing agreement, New Jersey Courts will conduct an analysis considering several factors. The New Jersey Supreme Court, in the case of Newburgh v. Arrigo, 88 N.J. 529 (1982) set forth the basis upon which parents can be ordered to contribute towards college expenses.

When a child has suitable scholastic aptitude for the pursuit of a college education and continues to exhibit that aptitude throughout his college career, the court will examine:

  1. Whether the parent if still living with the child would have voluntarily contributed to the cost of the requested higher education;
  2. The effect of the background, values, and goals of the parent and 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 the higher education;
  4. The ability of the parent to pay the cost;
  5. The relationship of the requested contribution to the choice of the school and 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 the child’s responsiveness to parental advice and guidance; and
  12. The relationship of the education requested to any prior training and the overall long-range goals of the child.

After reviewing these factors, if a court finds that contribution for college is appropriate, it may impose some or all of the following conditions:

  1. All savings accounts earmarked for the child’s education shall have been exhausted;
  2. Scholarships, loans, grants, and any other financial assistance shall have been applied for in reasonable fashion. The parties and the applying student shall cooperate in this regard;
  3. Reasonable contribution shall be made by the child towards the education costs from summer employment;
  4. Each of the parties shall have an equal say in the choice of higher educational schooling;
  5. There shall continue to exist the customary parent-child relationship as currently exists;
Obviously, each case depends on its particular facts and circumstances and the financial abilities of each party. What is reasonable for one family may not be for another. However, when children show aptitude for college and their parents have the reasonable means to assist with, or pay for the entire cost, the Courts will fashion a remedy such that the child can attend post-secondary  school. 
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