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 Most recently, the Appellate Division in the unpublished decision of Hikes v. Hikes, Decided August 13, 2009, Docket No. A-6642-06T2 addressed both the issue of sanctions and the payment of college for a child.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.