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 As was the situation in the recent unpublished decision in Orero v. Orero, App.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.