Posted on October 13, 2009 by Erin DeGeorge

Retroactive College Contribution

Many couples in the midst of a divorce have very young children. As a result, the issue of funding their children’s college education is typically reserved until the child is of college age. Parties typically agree to include language in their Property Settlement Agreement wherein they will exchange income information and begin discussions regarding the child’s college expenses during the child’s junior year of high school. This makes sense because after all, no one can predict their financial future. Fast forward 15 years, the child is about to begin the process of applying to college. The parties have informal discussions, sans counsel, regarding their respective contributions. The custodial parent accepts the non-custodial parent’s contribution for a few years then decides it is just not enough. Can the custodial parent seek a retroactive contribution toward the child’s college expenses? 

The Appellate Division just answered this very question in the unpublished decision of Kmetz v. Fusaro, Decided October 9, 2009, Docket No. A-5870-07T3. In Kmetz v. Fusaro, the parties divorced when their daughter was 9. Their Property Settlement Agreement includes the following clause “The parties acknowledge their desire of the child to attend college or other post graduate professional schooling consistent with the child’s ability and the parent’s financial means. Each party agrees to assist the child in such endeavor and to contribute according to their then available means after all available financial aid, scholarships and part-time and summer earnings.”  

 

The parties’ daughter attended college immediately following high school graduation. The Father voluntarily paid $1,500 each year toward his daughter’s freshman and sophomore year college costs. In the summer between the daughter’s sophomore and junior year, the Mother asked Father to increase his contribution. Father increased said contribution to $2,000 that year. In the middle of the daughter’s junior year, Mother retained an attorney who contacted Father seeking an additional contribution toward the college expenses. Ultimately, Mother filed a motion with the trial court seeking contribution, in proportion to income, toward the daughter’s college costs for her freshman, sophomore, junior and senior years. The trial court granted Mother’s request and ordered Father to pay 68 percent of his daughter’s college costs for all four years.

 

The Appellate Division, relying upon Gac v. Gac, 186 N.J. 535 (2006) and Newburgh v. Arrigo, 88 N.J. 529 (1982), concluded that Father  should not have to contribute toward the college costs of his daughter’s freshman, sophomore and first semester junior year. Reason being, Mother accepted Father’s voluntary contributions for the aforementioned years.   Suffice it to say, if you are the custodial parent of a child on the heels of the college application process, it is essential that you discuss the funding of your child’s college education with your ex-spouse. If you are unable to reach a resolution, it is imperative that you seek the Court’s assistance prior to your child’s first day of college.

 

EDITOR'S NOTE:  To avoid the typical complaints about lack of consultation and lack of notice, the custodial parent should also involve the non-custodial parent in the process as early in college selection process, as possible, and put the communications in writing.  Perhaps the non-custodial parent should be invited to make college visits with the custodial parent and the child or otherwise, should be invited to take the child to other colleges for visits.  In fact, the other parent should be solicited for schools that he/she would suggest being considered.  The more that is done in this regard, the less the other side can object to and as such, the review becomes a financial one, as opposed to dealing with some of the other extraneous issues that often come up.  ERIC S. SOLOTOFF

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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 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 23, 2009 by Robert A. Epstein

WHEN IS A CHILD IS EMANCIPATED UNDER NEW JERSEY LAW?

A question faced by all parents is, when is a child emancipated in the eyes of the law?  As set forth by the New Jersey Supreme Court,  "emancipation is 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).  The question and answer therefore have far reaching financial implications.  However, emancipation does not occur at a fixed age.  Rather, the inquiry is fact-specific. 

This issue was recently taken on by the Appellate Division in the matter of Brandes v. Rigney, an unpublished opinion finding that the trial court applied improper legal principles in concluding that a child was emancipated.  The parties at issue had three children before they were divorced in 1997.  In 2004, the father, Brandes, sought to have the parties' sons emancipated.  The parties' oldest son, Raymond, was born in 1982, while the other son, Eric, was born in 1985.  The trial court denied Brandes' motion at that time.

Three years later, Brandes moved again for the sons' emancipation.  The trial court granted the motion.  While Rigney did not object to Raymond's emancipation, she did as to Eric, asserting that part of his difficulty in completing college was due to his own health issues.  Relying on the twelve factors set forth in Newburgh, the trial court declared Eric emancipated.  It was this decision that formed the basis of Rigney's appeal.

The Appellate Division first reviewed basic emancipation principles, referencing the quote from Newburgh stated at the outset of this blog entry.  It also referenced N.J.S.A. 9:17B-3, which establishes a rebuttable presumption against emancipation prior to the child reaching the age of majority (18), while stating that turning 18 establishes prima facie, but not definitive, proof of emancipation.  By way of example into this fact-specific question, the Appellate Division stated that emancipation may occur upon a child's marriage, induction into military service, by a court order based on a child's best interest, or by attainment of an appropriate age. 

The Court then quoted from Bishop v. Bishop, 287 N.J. Super. 593 (Ch. Div. 1995), stating that the essential inquiry as to emancipation 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."  The actual determination, according to the Court by way of reference to Dolce v. Dolce, 383 N.J. Super. 11 (App. Div. 2006), requires a "critical evaluation of the prevailing circumstances including the child's need[s], interests, and independent resources, the family's reasonable expectations, and the parties' financial ability, among other things."

With these legal principles in mind, the Appellate Division held that the trial court erred by deciding that Eric was emancipated through application of the Newburgh factors, since such factors address a parent's obligation to pay for a child's college expenses.  As the question was whether Eric was emancipated, which would then impact Brandes' obligation to pay child support and contribute to his college expenses pursuant to the parties' settlement agreement, the Court remanded the matter for proper consideration of the issue.

 
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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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