Posted on June 7, 2009 by Robert A. Epstein

FROM EMANCIPATION TO COLLEGE EXPENSES - WHAT IS A PARENT'S FINANCIAL OBLIGATION?

Recently, I addressed the question as to when a child is emancipated under the eyes of New Jersey law.  As I indicated there, the New Jersey Supreme Court defines emancipation as "the act by which a parent relinquishes the right to custody and is relieved of the duty to support a child."  Newburgh v. Arrigo, 88 N.J. 529 (1982). A related question also addressed by the Court in Newburgh is a parent's obligation to contribute towards a child's postgraduate education expenses.

The Supreme Court in Newburgh set forth a non-exhaustive list of factors for a court to consider in determining a parent's obligation to contribute to such educational expenses.  These factors 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.

This issue recently was addressed in the unpublished Appellate Division decision of Subbie v. Subbie.  The facts are relatively straightforward except for the fact that the parties were married and divorced to each other twice.  They had three children, a son and two daughters.  While the divorce complaint was pending in May 2006, the Wife sought interim, pendente lite relief for the children's college expenses.  An Order was subsequently entered by the trial court directing the Husband to reimburse the Wife for $1,800 towards their son's 2005-06 college tuition, and also ordered an equal sharing of said costs through May 2007.  All other relief on this issue sought by the Wife was denied pending a plenary hearing.

Months later, the Wife filed a motion to enforce litigant's rights because the Husband failed to reimburse her the $1,800 previously ordered.  The Husband then cross-moved to emancipate the son, who was in his fifth year of college, and to re-compute his child support obligation.  The Court found the Husband in violation of litigant's rights, granted counsel fees, and reserved the issues of emancipation and recalculation of support to the plenary hearing. 

Following the plenary hearing, the trial court held that had the marriage remained intact, both parents - each of whom had college degrees - would have expected their daughter to attend college and that they each possessed the financial means to assist with college costs and would have contributed accordingly.  The trial court also noted that the Husband should contribute $6,000 based on his financial ability despite his strained relationship with the daughter and that the cost to attend her school of choice - NYU - was beyond both parents' financial means.  The trial court further ordered that the Husband was still required to reimburse the $1,800 (with interest) for the son's college previously ordered, but that he did not have to pay for the son's fifth year of college.

On appeal, the Appellate Division held that the trial court properly considered the factors outlined above in concluding that the Husband:  (1) could contribute towards the daughter's higher education expense; (2) recognized that she would be attending college based on her academic achievements; (3) did not object to her attending college, but rather the actual college selection; and (4) the relationship between them was not always strained and, in actuality, was strained due to the divorce itself and the Husband's failure to attempt to resolve any damage the divorce proceedings caused to his relationship with the children. 

The Appellate Division also concluded that the trial court properly found the son emancipated as of 2006 and that, as a result, the Husband's child support obligation would decrease.  The Husband argued that the son should be declared emancipated sooner because he earned approximately $10,000 in 2005-06 and 2006-07; bought a new car; and incurred large credit card debt.  The trial court, however, noted that the Husband contributed to the son's college expenses even while the son worked before the divorce and that the Wife simply wanted him to continue contributed the same amount that he did before the divorce transpired.  It also correctly concluded that the Husband should pay the $1,800 previously ordered because his failure to pay for same was in "flagrant violation" of that earlier Order.

Questions regarding emancipation and college expenses are especially relevant in light of the current economic environment.  Each situation is highly fact-specific, with an analysis of the above factors, as well as those discussed in my prior entry on emancipation.  Consulting with an experienced matrimonial attorney will assist in your evaluation on these difficult financial issues involving your children future and educational well being.
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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 March 28, 2008 by Eric S. Solotoff

UNREIMBURSED MEDICAL EXPENSES ARE DEEMED CHILD SUPPORT -THE REQUIRMENT FOR PAYMENT CAN'T BE WAIVED BY LACK OF PROSECUTION

On March 27, 2008, the Appellate Division released the decision in Gotlib v. Gotlib.  This is a reported decision which means that it is precedential and must be followed by courts in the future. 

In this case, the plaintiff/ex-wife filed a motion seeking enforcement as to unreimbursed medical expenses and the payment of college expenses. She also sought to invalidate defendant/ex-husband's transfer to a third part for his share of the marital residence.

As to the issue of medical expenses, the parties were required per their Judgment of Divorce to equally share in these costs.  The plaintiff sought more than $23,000 in medical expense arrears, going back to 1996.  These expenses included those that were already awarded to her in 1997 when she was required to file an enforcement motion.  Though she was successful in the motion, the defendant never paid.  The defendant argued that plaintiff waived her right to enforce the Judgment's clear provisions requiring each party to pay one-half of the children's un-reimbursed medical expenses because she did not consult with him before the children visited certain physicians, and did not bill him on a monthly basis, as required by the Judgment.

The Appellate Division disagreed holding that a parent's obligation to pay un-reimbursed medical expenses should be deemed by a court reviewing a motion to enforce litigant's rights as an essential benefit to the parties' children. In this light, the right to receive these payments belong to the children, and is therefore is not subject to waiver by a custodial parent. That said, the non-custodial parent retains the right to question the reasonableness of any individual medical expense.

The Appellate Division made some interesting comments as to how parents should ideally act after a divorce:

"A parent from whom financial contribution is sought nevertheless retains the right to challenge the reasonableness of the medical expenses. Cooperation, discussion and consultation should be the guiding principles in any decision involving the welfare of the parties' children. In deciding what type of medical treatment is required, the need for the parties to behave and act like parents is paramount. This may require them to subordinate their adversarial interests as litigants in favor of their children's welfare."

They also set forth factors that should be considered when assessing medical expenses, as follows:

"Some of the relevant questions to be addressed when considering the reasonableness of a reimbursement request are: (1) was the treatment medically necessary; (2) was the medical treatment in response to an unforeseen emergency requiring immediate action; (3) did the treatment involve elective or cosmetic medical services, and if so, was it in the best interest of the child involved to undergo such treatment; and (4) in cases of elective or cosmetic medical treatment, was the decision economically sound, given the parties' financial resources. This list is by no means an exhaustive recitation of the issues to be considered in every case. These cases are, by necessity, factually sensitive. A proper resolution requires careful attention to the salient facts."

As to the college issue, the Appellate Division reversed the finding that the parties should equally share the costs remanded the matter to the trial court  to make factual findings, after conducting a plenary hearing, guided by the factors outlined in Gac v. Gac and Newburgh v. Arrigo. The reason for this was that the Judgment was silent as to how the parties would divide higher education expenses, however, in arriving at his decision, "the motion judge did not address the Newburgh and statutory factors reflected in N.J.S.A. 2A:34-23(a) ,,, The court simply appears to have divided the expenses equally."  In addition, the Court was concerned because the plaintiff also did not seek contribution from defendant until long after the expenses had been incurred, "thereby excluding him from the decision making process of whether his son should attend Curry College or whether his daughter should attend Ba'er Miriam Yeshiva, both private schools. (citations omitted).  Participation by both parents is an essential factor under Gac, expressly required by the JOD, and should have "weigh[ed] heavily against the grant of a future application. (citations omitted)."   

In Gac, a father was not required to pay for college because of similar reasons as in the case above.  This seemingly creates a contradiction in how medical expenses and college expenses are treated.  Seemingly, reimbursement for medical expenses cannot be waived for lack of prosecution of the arrears.  On the other hand, contribution for college costs can seemingly be waived if a parent waits until after college is completed to seek reimbursement.  The distinction, at least in this case, is that apparently, at least as to the medical expenses, the defendant was given the explanation of the medical expenses and the proofs near the time they were incurred and/or the defendant had knowledge of them - even if exact compliance with the Judgment was not made by the plaintiff. 

The Appellate Division also held that the mortgage on the former marital residence, held by one spouse as mortgagee to secure his equitable distribution interest, may be assigned to a third party. However, the court declined to decide whether the assignee is a holder in due course, because he was not a named party in the matter.
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