The Appellate Division’s newly published (precedential) decision in Avelino-Catabran v. Catabran provides another lesson to practitioners and litigants about the language used in settlement agreements and how such language, if unambiguous and without basis to modify, will likely be upheld in matrimonial matters.  The specific dispute involved college payments for the parties’ older child and child support, but the importance of this decision stems from the enforceable nature of the settlement agreement itself rather than what portion of the agreement was at issue.

Contract pic

Here are the relevant facts that you need to know:

  • The parties were married on June 18, 1993 and divorced on August 14, 2002.  A settlement agreement addressing custody and support of the children – 21 and 17 at the time of the appeal – were addressed therein.
  • The agreement provided that the parties shared joint legal and physical custody of the kids, with mom being designated as the parent of primary residence during the school year and dad during the summer.
  • The agreement also required dad to pay $137 per week in child support, and the parties seemingly agreed to increase the obligation to $800 per month in 2009.
  • As to college, the agreement provided that the parties would be equally responsible for “net college expenses – those remaining after the children applied for financial assistance.”  The agreement provided:
  • The minor children shall have an obligation to apply for any and all scholarships, student loans, grants and financial aid that may be available to help defray the cost of each child’s attendance at college.  After deductions for scholarships, student loans, grants and financial aid, the parties agree to be responsible for the net college educational costs of the minor children.  Net college cost[s] will be split equally by the parties.  (language was deleted providing that the parties respective obligations were to be determined pursuant to their respective abilities to pay at that time).

  • In June 2004, the parties agreed to change the custody and parenting time arrangement, eliminating alternating weekends with the kids living full-time with mom during the school year and with dad during the summer.
  • In May 2011, the custody and parenting time arrangement was again changed when mom and her new husband moved to Switzerland with the kids.  To facilitate the move, dad signed a letter at the time providing that mom had sole custody of the kids “[f]or the duration of, and subject to, their residing in Switzerland.”
  • After graduating from high school, the oldest child decided to attend NYU starting in Fall 2012.  Total cost of attendance was approximately $62,000, but the school offered substantial financial aid (including a large scholarship, a work study offer, and student loans), the total value of which came to approximately $23,000.  The package also included PLUS loans worth approximately $39,000, which were defined by the award letter as “the maximum amount . . . . [a] parent may borrow.”
  • The child accepted the full scholarship, work study, and student loans offered to her.  In an email sent at that time, dad asked mom, “how much Parent PLUS Loan should we borrow?” and suggested they borrow approximately $13,000 to cover mom’s share of the balance owed for college.  Mom responded by telling dad to “Please borrow this money on behalf of Catherine (the older child)”.  As a result, dad accepted the available PLUS loan.
  • In October, 2012, dad filed a motion seeking to modify child support to reflect a split-parenting arrangement, an order requiring mom to pay half of the child’s net college expenses, and judgment against mom for the amounts due on the PLUS loan and owed to NYU for the Spring 2013 semester.
  • Mom argued that no funds were owed by her for college costs because NYU provided the child enough financial aid to cover the total expense.  Financial documents submitted showed that mom’s gross income was approximately $225,000 annually and dad’s was $113,000 (they each earned $73,000 at the time of the divorce).
  • In May, 2013, the court entered an order directing mom to contribute to college expenses, but required the parties to submit their financial documents to determine what said contribution should be.  It also directed the parties to submit pay stubs and tax returns to determine child support moving forward.  In so doing, the court found that the financial aid package did not cover the full college cost, the PLUS loans were available only to mom and dad, and dad had established changed circumstances warranting a child support modification.
  • Notably, the court found that, based on the above-described emails, mom was aware of the financial aid package and that the loans dad was taking were to cover her share of the college costs.  NYU was also deemed an appropriate college choice by the child because of the “employment opportunities offered to NYU graduates” instead of another school preferred by mom.
  • Mom moved for reconsideration of the trial court’s order.  The motions were denied in January 2014.
  • During the next series of months, the parties submitted various financial disclosures to the court.  Mom claimed she could not afford to pay for college, and she had filed for Chapter 11 relief in bankruptcy court approximately six months prior.
  • In May 2014, the court ordered mom to contribute 50% of the net college expenses.  It also modified child support, directing dad to pay $186 per week for the younger child, and mom to pay $281 per week for the older child (resulting in a net payment of $95 per week to dad).  In so doing, the court found mom had sufficient resources to contribute to college, considering the requisite legal factors (the Newburgh factors) in so doing, and relied on the language of the original settlement agreement calling for an equal payment obligation.
  • As for child support, the court, in that same order, found that the children’s respective living arrangements (older child at college and younger child in Switzerland) merited a modification.  In so doing, the court relied upon the Child Support Guidelines, Rule 5:6A, and dad’s support proposal (not included in the order).  In so doing, the court also attached a Child Support Guidelines Sole Parenting Worksheet for two children in a “split-parenting situation” (for multi-child families where one parent has custody of one or more children, and the other parent has custody of the other children).  Support was modified retroactive to October 2012 when dad first filed his motion.
  • Mom appealed the relevant order.

i.     Decision on College Expenses

In affirming the trial court’s finding as to college, the Appellate Court found that the lower court properly enforced the unambiguously written original settlement agreement requiring mom to be equally responsible for the kids’ college expenses because there was insufficient evidence of unconscionability, fraud, or changed circumstances (despite mom’s bankruptcy filing) that would merit a deviation from the agreement.  The Court reiterated the obligation of divorced parents to contribute to the higher education of children who are qualified students (notably, the court referenced a general parental obligation to pay – not just for divorced parents, which has been a hot topic of discussion in recent years).

  • Notably, because the parties agreed on how to pay for college in the settlement agreement, the trial court was not required to apply all of the Newburgh factors in rendering a determination and was simply required to enforce the agreement/contract as written.
  • As to the PLUS loan, the Appellate Division disagreed with mom’s position that the loan was secured for the child because the child was not eligible to apply for or receive the loan herself.  “Therefore, the PLUS Loans cannot be considered a student loan or financial aid available to [the child] for which she had to apply, as contemplated by the parties.  The court correctly determined that [mom] authorized the loan and she was responsible for same.

ii.     Decision on Child Support Modification

The Appellate Court affirmed the trial court’s determination (without a hearing) that the older child living at college and spending her time off with dad instead of with mom in Switzerland was a sufficient changed circumstance to merit a support modification.  There was also no dispute that the parties’ incomes had substantially changed since the divorce.  The Appellate Court, however, agreed with mom’s position that the trial court erred in calculating child support by:

  • Failing to consider the statutory child support factors as required by Jacoby v. Jacoby when a child lives away from home while attending college (at which point the Guidelines no longer apply);
  • Failing to properly calculate the support award and issue a clear statement of reasons for same; and
  • Relying on dad’s use of the Guidelines and its incorporation by reference of dad’s proposed calculation.

Primarily, the trial court failed to calculate the Guidelines-based amount and specifically provide why it was deviating from same in the best interests of the child.  “[A] court cannot simply attach a guidelines worksheet in lieu of providing a statement of reasons.”  In so holding, the Appellate Court noted, “The court’s statement regarding its abdication to [dad] of its obligation to calculate support did not satisfy its obligation to provide a statement of reasons for its decision.”

Avelino-Catabran provides a useful analysis for practitioners and litigants when it comes to drafting agreements and, in this particular instance, what will and should be included in the college expense portion of same.  Most of the agreements I have seen and drafted are largely similar on this topic and, by excluding the PLUS loans (which were not identified in the agreement) from the equation, the Court ensured that divorced parents cannot essentially abdicate their responsibility to provide for a child’s college expenses.

 

*image courtesy of freedigitalphotos.net

In the return of our New Jersey Family Law Podcast Series, we are proud to present our fifth installment discussing child support and emancipation.  This has been a hot topic in recent months, especially following the Rachel Canning lawsuit from earlier this year.  Enjoy!

Listen to the Podcast and download the transcript here.

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Robert A. Epstein is a partner and Eliana T. Baer is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com. Eliana practices in the firm’s Princeton, New Jersey office and can be reached at (609) 895-3344, or etbaer@foxrothschild.com.

 

Emancipation of a college student – when does it happen?  When should it happen?  In the wake of the Rachel Canning matter, emancipation is a hot button topic in New Jersey.  Generally, the law provides that a child is emancipated when he or she is no longer within the parental “sphere of influence and responsibility.”  It is been deemed the “conclusion of the fundamental dependent relationship between parent and child.”  Well, what does that even mean?  In Rybak-Petrolle v. Rybak, a newly unpublished Appellate Division matter, the Court reversed a trial court decision emancipating the parties’ then 21-year old son.

college (courtesy of google free images)

Here are the facts that you need to know:

The parties’ entered into a settlement agreement that provided for mom to be the primary residential custodial parent for the children, and for dad to pay child support until emancipation, which was defined in the agreement as follows:

An Emancipation Event shall occur or be deemed to have occurred upon the earliest happening of any of the following:

a. The completion of five academic years of college education;

b. Marriage . . . ;

c. Permanent residence away from the residence of [plaintiff] . . . ;

d. Death;

e. Entry into the armed forces . . . ;

f. Engaging in full-time employment, during school vacations and summer periods shall not be deemed an Emancipation Event.

g. Notwithstanding anything contained in sub-paragraph (a) above, an Emancipation Event shall be deemed deferred beyond a child’s [twenty third] birthday only if and so long as he pursues college education with reasonable diligence and on a normally continuous basis.

More than 10 years after the settlement, the Passaic County Probation Division inquired as to whether the child at issue was emancipated for purposes of child support enforcement.  In response, mom submitted documents showing that child was a full-time student at Berkeley College.  Probation, however, was not satisfied with such proofs, and requested a court Order relieving it of its duties to monitor and collect child support.  At a subsequent hearing, the trial judge, after finding that child was a full-time college student, denied Probation’s emancipation request.

After further procedural activity involving Probation’s enforcement duties, another hearing occurred several months later where Probation again argued – despite the trial court’s prior Order – that it was not satisfied with mom’s proof that the son was a full-time college student.  Mom responded that child was in his sophomore year of college, and that he was originally enrolled in Seton Hall University, but did not do well.  She added that he took one semester off before transferring full-time to Berkeley College for online classes where he was maintaining a 4.0 grade point average.

When asked why child was taking online classes, mom responded that it worked better for his schedule, because he was also working 2 jobs to pay for his car insurance bill.  When asked if child was working full-time, mom responded that he was, at which point the judge declared the child emancipated, concluding that “the son was not pursuing a college education with reasonable dilligence on a normally continuous basis as required by the PSA.”

On appeal, the Appellate Division determined that a plenary hearing should have occurred to determine if the child was emancipated, since it is a fact-sensitive inquiry – specifically, “a critical evaluation of the prevailing circumstances including the child’s need, interests, and independent resources, the family’s reasonable expectations, and the parties’ financial ability, among other things.”   The trial court based its ruling solely on “limited questioning” as to the son’s full-time employment while taking online classes and, as a result, a conclusion that he was not pursuing full-time education with reasonable diligence.  The trial judge made no findings as to:

  • The child’s needs and abilities;
  • How many course credits he was taking;
  • His total expenses for school;
  • How many hours he was working;
  • How much he earns;
  • Whether those earnings are sufficient to cover the costs of school and living expenses;
  • Whether there were scholarships or financial aid packages applied for and received; and
  • Other relevant factors.

The parties’ agreement also provided, as quoted above, that one defined emancipation event was the completion of 5 years of college, and that, if the child reached his 23rd birthday, emancipation would be deferred “only if and so long as he pursued college education with reasonable diligence and on a normally continuous basis.”  Based on such enforceable language, the Appellate Division noted that the trial court failed to explain why he used the agreement’s standard for continuing college after 23 when the child was only 21 at the time of the hearing, and held that a child working “while attending school cannot be the sole determinative factor in the decision to emancipate,” nor can be the fact that he took a semester off before transferring to his present school.

The lesson to be learned here is that whether a child – especially one who is simultaneously in college and working – is emancipated is a very fact specific inquiry requiring detailed analysis and consideration.  The answer is not simply in a settlement agreement, nor can it typically be isolated to one specific detail.

 

 

 

The Canning case has dominated the news in New Jersey and points beyond over the last two weeks.  You know, the so-called “spoiled teen” that moved out of her parents house, and among other thing, sued to have them pay for college.  Robert Epstein has blogged on it several times on this blog. While it was reported today that the matter may have been amicably resolved, the trial judge and legal pundits far and wide spoke of her uphill battle to succeed in the case.

 

Graduation Concept Stock PhotoPhotos courtesy of freedigitalphotos.net

But why?  The pundits again point to the constitution.  The constitution, they say, prevents government from intruding in the care and parenting decisions of fit parents.

Page one of the original copy of the Constitution

But we know that government can act to prevent harm.  There are laws governing car seats, education and a whole host of other things that infringe on a parents rights as to their children.  Fit parents cannot provide alcohol to their children before they are of legal age. In fact, we know from the grandparent visitation cases, that the constitutionally protected decisions of fit parents to deny grandparental access can be overcome by a showing of harm to the children.  Some of the pundits have suggested that children of divorced parents will be harmed if their parents are not compelled to pay for college – that’s not quite right – but query why children of in tact families can be harmed if their parents refuse to pay for college – and that is ok – but children of divorce need some special protection from the exact same “harm”?

So where does the obligation for college come from?  The Supreme Court case of Newburgh v. Arrigo is most often cited as the basis for this.  Though I have read the case dozens of times over the years, I read it again when the Cannings invaded our consciousness. Here is what Newburgh actually says:

Generally parents are not under a duty to support children after the age of majority. Nonetheless, in appropriate circumstances, the privilege of parenthood carries with it the duty to assure a necessary education for children. Frequently, the issue of that duty arises in the context of a divorce or separation proceeding where a child, after attaining majority, seeks contribution from a non-custodial parent for the cost of a college education. In those cases, courts have treated “necessary education” as a flexible concept that can vary in different circumstances. …

In the past, a college education was reserved for the elite, but the vital impulse of egalitarianism has inspired the creation of a wide variety of educational institutions that provide post-secondary education for practically everyone. State, county and community colleges, as well as some private colleges and vocational schools provide educational opportunities at reasonable costs. Some parents cannot pay, some can pay in part, and still others can pay the entire cost of higher education for their children. In general, financially capable parents should contribute to the higher education of children who are qualified students. In appropriate circumstances, parental responsibility includes the duty to assure children of a college and even of a postgraduate education such as law school. (Emphasis added)(internal citations omitted).

So does Newburgh speak to harm?  No, it says that college education is a necessary.  Does the case limit the obligation to provide this necessary to a divorce?  I don’t know – as noted above, the case simply notes that the issue frequently arises in the context of divorce.  You could certainly argue that Newburgh doesn’t limit the issue to divorce cases.  But then Newburgh speaks to the concept that the obligation attaches to those who are “financially capable” (often honored in the breach because many judges have treated the obligation for college absolute even without financial capability but that is an issue for another day.)  That said, if the standard is financial capability, one could argue that in tact families are likely more capable that divorced families where the same income that once supported one household now has to support two homes.  If college is a necessary, does the denial of payment for college rise to the level of harm?

This leads me back to the question raised in the title – why do parents who are divorced have to pay but parents in in tact families do not?  I know, I know, the Constitution.  Maybe just maybe, the harm standard can be raised to overcome a fit parents decision to deny a child of this necessary.

Finally, the constitutional attack is rarely raised in this way, but from time to time, is raised by divorced parents who are forced to pay for college.  The court usually avoids deciding this issue.  That said, in many other states (and NJ is in the minority of states that require parents to pay for college), the obligation to pay for college was struck down on constitutional grounds – i.e. there is no basis to compel the obligation for divorced parents but not married parents.

While the Cannings may now be in our rear view mirror, hopefully for them and for the rest of us, I expect that this debate may rage on.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

We have written many times on this blog about the dangers of using social media in connection with an ongoing divorce, custody dispute, domestic violence matter, and more.  Apparently Rachel Canning, the New Jersey teen suing her parents for financial support and college payments, is not a subscriber to the blog.  If she were, she would know that creating a Facebook page to support her suit against her parents is only going to lead to trouble.

facebook

A quick review of the Facebook page reveals the following recent posts, which are believed to have been written by Canning herself:

In New Jersey (as in most states) parents are required to support their kids through high school unless legally emancipated, which I’m not. This means that they can NOT put conditions on me being at home, which they did. They can’t get out of this. The fact that they cut my tuition was also clear bad faith, and a breach of contract with the school. What did they expect me to do, drop out? I am absolutely amazed at some of the cruel (and legally ignorant) comments I’m reading here.

Suburban baby boomer types are the spoiled lot, they make massive amount of money a year, they are used to flying to luxury destinations when they want, and buy things that they don’t need, people should be inclined to see things Rachel’s way.We have been stunned by the financial greed of modern parents who are more concerned with retiring into some fantasy world rather than provide for their c…hildren’s college and young adult years.

In today’s economy there are no more meaningful jobs and without family help it’s usually military or bust. We see parents like this every day, children were always an accessory to them and nothing more, once that accessory grew up and went out of fashion, much like a marriage that people allegedly commit to, the child becomes a throwaway, that’s just how it is.

Not only have these, and other posts from Canning resulted in harsh responses from many page followers, but the posts themselves constitute potential evidence for her parents to utilize, and the trial judge to rely upon, when further rendering decisions in this matter.  The judge has already made some very strong statements against Rachel’s position, including commentary addressing the gross disrespect that he believes she has shown towards her parents.  The posts may, as a result, further tarnish her image and credibility, which may also be a factor in the Court’s decision making process.
Clearly Rachel has either taken it upon herself, or been advised by others, to use the Facebook page in an effort to sway public opinion in her favor.  Perhaps she is the litigant that I previously blogged about who is simply unable to stop herself, like many other people in today’s society, from using social media to post about anything and everything.  Considering the surprisingly massive attention this Morris County case is getting, she should think twice.  The potential negatives far outweigh any nominal benefits to be gained.

 

You may have heard about the hot news story that continues to gain traction nationwide where a New Jersey teen sued her parents in the Morris County Superior Court for financial support, private high school tuition, college payments, and attorney fees.  It even made the cover of today’s Star Ledger.  She is seeking an official declaration that she is unemancipated and, as a result, her parents are still obligated to support her.  The case has largely generated a public outcry, as people question how, based on the facts and circumstances at issue, a court could consider impeding on parents’ rights.

Rachel Canning, eighteen years old and a student at Morris Catholic High School (who has reportedly been admitted to seven different colleges), claims that her parents forced her to leave their home and that, as a result, she is unable to financially support herself.  Her allegations are certainly troubling, whether true or not, that her parents verbally abused her, and also threatened to physically do so.  Her certification to the court, signed under oath, claimed that she “had to leave to end the abuse,” that her parents stopped paying private high school tuition to punish her, and that they have redirected her college fund.

arguing

By contrast, her parents deny the abuse, and claim that Rachel left voluntarily because she did not want to obey their rules, such as being respectful, complying with curfew, and performing some chores around the home.  In fact, they are welcoming her back into their home.  They further claim that Rachel was suspended from school in October, 2013, shortly before moving out of the home, and, as a result, her parents indicated that she could no longer see her boyfriend (who was also suspended from school), and had lost her car and phone privileges.

When the punishment came down, her father claims that Rachel cut school again and ran away from home.  Rachel moved in with relatives of a close friend, and the lawsuit is being funded by a former Morris County Freeholder.  Interestingly, while Rachel’s parents have paid for Morris Catholic through the end of last calendar year, the school has indicated that it would not kick her out for unpaid 2014 tuition.

Notably, an investigation undertaken by the Division of Child Placement and Permanency (DCPP), which Rachel claims was initiated by the school, determined that her allegations of emotional abuse were unfounded.

Yesterday, March 4th, the Morris County trial judge, the Honorable Peter Bogaard, J.S.C., denied Rachel’s request for immediate weekly child support, thousands of dollars in attorney fees, and immediate reimbursement of her high school tuition.  The judge denied the high school reimbursement request because the school indicated that she could remain for her last semester without payment, and denied the request for immediate financial assistance because there was no emergency posed.  The judge did rule that her parents must continue to cover the child on their health insurance policy and maintain the status quo on all existing college savings accounts.

Another hearing is scheduled for April to determine other issues in the suit, including whether Rachel voluntarily left her parents’ home, and whether her parents are required to pay for college.  In so ruling, he admonished the child for her disrespectful behavior towards her parents, fault for which Rachel’s attorney attributed to her parents.

The case is newsworthy in asking a trial judge to determine whether parents have a support obligation for this child.  It presents one of those very “slippery slope” type situations where, if Rachel’s relief is granted, it could potentially open the door for kids everywhere to sue their parents for financial support.  Indeed, Judge Bogaard remarked during yesterday’s oral argument that this could open the door for a twelve year old to sue his parents for an X-Box, or another young child suing her parents for an iPhone, because everyone has an iPhone.

While Rachel’s allegations are concerning, that does not mean she is entitled to that which she seeks from the court.  Emancipation requires that a child be beyond the “sphere of parental influence,” but parents also have a fundamental right to parent their children without unnecessary interference.  Indeed, Rachel’s parents argue that the person funding her litigation is interfering with that very fundamental premise.  We have dealt with that very situation in the past, where a relative or family friend will fund a child’s litigation against parents for various forms of relief.

Further, while divorced parents in New Jersey are required to fund an unemancipated child’s college education, intact parents are not similarly required to do so.  Perhaps that is somehow unfair or incongruous, or some sort of equal protection issue, but it is the law.  A decision by the trial judge requiring the parents to pay for college, or somehow maintain the already existing college funds for Rachel, will certainly garner attention statewide, if not nationwide, and will undoubtedly lead to ongoing litigation between a child and her parents embroiled in a battle that has long since veered out of control.  The litigation is tragic, and hopefully this matter will soon come to an end so that this family can work on getting itself back together and moving on.

 

 

It seems with greater frequency, a divorced parent will argue that he should not have to pay for a child’s college (a New Jersey requirement) because he has a poor relationship with the child and, relatedly, had no say in the education decision making process (i.e., what college, at what cost, etc.).  Since a parent’s relationship with a child is only one factor to be considered in determining that parent’s obligation to pay for a child’s post-secondary education, this argument is usually unsuccessful in isolation due to the importance of a child obtaining a post-secondary degree.

In an interesting approach to get around the limited success rate surrounding this argument, the dad in Radcliffe v. Radcliffe, Jr., a newly unpublished (not precedential) decision from the Appellate Division, argued primarily that the parties’ settlement agreement required the child’s emancipation, which would extinguish his obligation to support the child and pay for his share of college.  When reviewing the facts of the case as presented in the decision, the father’s approach seemed dubious, and, as a result, the Appellate Division not only took him to task in reversing the trial court – which actually largely relied on the parent-child relationship in rendering its decision – but also commended the daughter’s conduct.

As a refresher, a court will deem a child emancipated if, based on existing facts and circumstances, the child has moved “beyond the sphere of parental influence and responsibility exercised by a parent and obtains an independent status of his or her own.”  A court will look at, among other things, the child’s needs, interests, independent resources, the family’s reasonable expectations, and the parties’ financial ability.

In Radcliffe, the parties agreement, as often occurs, specifically defined emancipation as follows:

a. The completion of the child’s formal education on a matriculated basis, whether it be graduation from a four year undergraduate school or high school. It is understood that as long as the child is diligently pursuing his or her formal education through a four year high school or a four year undergraduate college education, is obtaining passing grades, and is deemed by the college or school to be a full time student, the child shall not be considered emancipated.

b. Upon the completion of any of the prior segments of the child’s education and upon failure to commence the next segment of his or her education, or upon leaving school, the child shall be deemed emancipated. A child shall not be emancipated if one fails to continue his or her education because of some injury, illness or other cause beyond the child’s control.

c. The marriage of the child.

d. Entry into the military or armed forces of the child.

The parties also agreed to share the financial cost of college.

The facts here then take an interesting turn:

  • Daughter graduates from high school in June, 2012.
  • Prior to graduation, she was accepted at a private, out-of-state, 4-year college, which, after financial aid, would still cost $30,000 per year.
  • Recognizing her parents’ inability to afford this amount, daughter – one week after her high school graduation – enrolled in a 26 week “massage and bodywork program” at an accredited vocational institute.  With her massage therapist certification, daughter hoped to work during college and contribute to her education costs.  Tuition for the vocational program was $11,000.  Daughter took out a loan for $3,900 and asked her parents to fund the remaining portion.
  • After obtaining her massage therapist certification, daughter intended on enrolling at a county community college for the Spring 2013 semester.  She ultimately planned to attend community college for 2 years and then transfer to a New Jersey state, 4 year college or university so as to complete the last 2 years of her undergraduate education.  Community college cost $2,250 per semester, but, after the financial aid she received, would only cost $700 per semester.  While attending community college, daughter would continue to reside with mom and commute to school.
  • Daughter sent dad a copy of the tuition bill for the massage therapy program asking him to pay his portion.
  • Dad responded by filing a motion to emancipate his daughter, arguing that he had not had any contact with the daughter for the past 18 months, had not been consulted on her education plans, and, because daughter was not enrolled in a 4-year college, she should be deemed emancipated per the settlement agreement.
  • The trial court emancipated the daughter, thereby ending dad’s support and college obligation.  Mom appealed.

In reversing the trial court’s decision, the Appellate Division repeatedly commended the daughter for what it described as her “innovative” plan, where there was “absolutely no break in her quest for a college degree.”  Specifically, the Court concluded that the daughter had not moved beyond that “sphere of influence,” as she was still living with mom, was still financially dependent on her parents, had only missed one semester of college so as to pursue her “quest,” and was doing everything she could to obtain that undergraduate degree, including pursuing full-time educational pursuits.

As to its interpretation of the contractual language in the parties’ settlement agreement, the Appellate Division concluded that the parties’ intended for the daughter to go to college, and even agreed to jointly fund the entire net cost of college expenses.  Lauding the daughter for her in-state college plan, rather than compelling her parents to fund an out-of-state private school education, the Court concluded that she would obtain that 4-year degree so long as everything went as planned.

The Court then moved onto the trial court’s decision, which relied primarily on dad’s argument that he should not have to pay due to the poor relationship he had with the daughter.  Ultimately, the Appellate Division found that the trial court’s reliance on this one single factor of the analysis I describe above was improper:

The child has a commitment to her education, a commitment to working during college to help pay her way, and a commitment to earning as much financial aid as possible to reduce her parents’ burden.  After considering all of these factors, we conclude they weigh substantially in favor of requiring defendant to pay his share of the daughter’s vocational school and college expenses.

Based on the specific facts at issue, the Appellate Division’s decision seems appropriate in rightfully rejecting dad’s efforts to avoid payment for the college expenses that he is obligated to pay in the State of New Jersey, and agreed to pay in the parties’ settlement agreement.

 

At the start of the week when most parents who have college students are writing that second semester check (gulp), the Appellate Division has decided a non precedential case in which a father objected to the trial court’s decision to make him pay 27% of his daughter’s college expenses at a private college. The case brings to the forefront situations in which the realities of limited available income come head to head with obligations for college expenses. Throw in a poor relationship between one parent and the college student, and you have a mess.

In the case of Caruso v. Whitlock, the father’s income was such that his basic child support obligation under the child support guidelines had been reduced as a result of the self support reserve. The self support reserve is a calculation in the child support guidelines which ensures that the obligor has sufficient income to maintain a basic subsistence level. So in other words, after child support, the obligor has to have left an amount which is 105% of the US poverty guideline.

The child in this case was enrolled in Rider University, a small private university without input from the father, with whom she did not have a good relationship. Both parents blames the other for the poor relationship.  The judge took some testimony from the parties on the issues, but there was not a formal hearing.  The daughter preferred a smaller college as opposed to Rutgers, the State University. The father stated that he wanted his daughter to go to college. The child received minimal financial assistance from the college and had some limited assets of her own.

The trial court ordered the father to pay 27% of the net college expenses which was based on the percentages from the child support worksheet that had been used the year before in an application for unreimbursed medical expenses. This came to approximately $6860 per year.  

Continue Reading Another college case: What's the actual ability to pay?

As many parents get ready to send their children off to college, those who are collecting child support from a non custodial parent wonder how their child support may be affected. The New Jersey Child Support Guidelines are applicable when computing child support for children who are less than 18 or more than 18 and attending high school and living at home. What, then, happens to child support when a child leaves for college? The guidelines specifically state that they should not be used to determine parental contributions for college or other post secondary education. As an exception, they may be applied when a child is living at home and commuting to college. Over the years, courts have taken an inconsistent view as to how child support should be calculated for children living away at school. In the recent, published ( precedential) case of Jacoby v. Jacoby, the NJ Appellate Division addressed this issue.

In the Jacoby case, the parties who were divorced had two children. When the oldest matriculated at college, the non-custodial father moved to reduce his child support obligation to Ms. Jacoby since the child no longer resided in his mother’s house. The trial judge granted his application, and reduced the child support by employing a formula in which the judge calculated child support for two children, and then one child. The judge then took the difference of these two sums and determined 38% of the difference and 25% of the calculated remainder   These two sums were then added and set as support.   Essentially, what the trial court did was to recognize that child support is comprised of three broad categories: fixed costs – those costs that are incurred even when child is not residing at home. An example is housing related expenses; variable costs – those costs which are incurred only when the child is with the parent ( food is an example); and controlled Costs – costs which are incurred by the primary caretaker of the child, such as clothing and entertainment. The court then presumed there was a lower amount of variable and controlled costs when the child was away at college and reduced support accordingly. 

 

When the second child matriculated, Mr. Jacoby again sought a reduction. A different judge heard the application and denied Mr. Jacoby’s request. He then appealed. 

Continue Reading A New case on Child Support for a College Student

We are in the season that High School seniors and their parents suffer from college anxiety. Figuring how to pay that tuition bill is stress enough in a two parent, happy household. In cases of divorced or separated parents, it can be overwhelming. Spring is when I receive most inquiries from clients about the payment of college tuition and expenses. I have just completed a college tour with my child, and attended multiple presentations in which I listened to many questions from parents. While March and April are when the acceptances generally come in, and one parent becomes concerned about the financial contributions of the other, now is actually the time to begin “getting your ducks in a row.” So I offer the following tips: 

   One of the most litigated issues in college contribution cases is the relationship between the parent and child and whether the non-custodial parent has been given a voice in the process.   Now that your senior (or better yet,  if you have a junior) is filtering through the masses of brochures that are coming in the mail every day, make sure that he or she stays in regular contact with the other parent, giving information about the schools he or she is looking at and making a case why they may be a good fit. If the relationship is strained with the non-custodial parent, make doubly sure that this information is flowing on a regular basis, and do it through emails or written correspondence. If your student is not doing this, make sure you do it. It may be a critical issue later. Build a paper trail. 

   All colleges and universities are now required to provide an estimate of total costs per year. Find that information on the school’s web site and pass it along. Make sure there are no surprises. And make sure you do it. Sometimes,  parents want to make the student responsible for the communication with the other parent. That’s fine until a critical error is made in the excitement of the college process. I once had a case where the student inadvertently received the approval of the other parent on the costs only to find out later that he had not realized that the figures he was using did not include room and board. Understandably, the other parent felt a bit snowed. One this one occasion, be a helicopter parent.

    Make sure you and your student apply for any and all financial aid and scholarships. Even if you do not think that your student will qualify, do it. First, you may be surprised. Some schools are actively seeking students from a specific geographic area, and will offer aid as an incentive. Second, this is a specific issue that courts look at.

   On that note, if you usually file for an extension on your tax returns, or if you know that your former spouse, or other parent does, let them know that it is important to get the returns filed on time. The FAFSA form, the application for federal financial aid, and the form that most schools use when determining need based financial aid, will want to see current income information. If one parent refuses to cooperate in this regard, this may be a factor a court will review.

   Understand how the schools your child wants to attend handles financial aid decisions. Some schools only look at the income of the custodial parent. Others look at the income of both, and still others look at total household income, including income from step parents. Know what you are dealing with and how it may affect your situation.

   Investigate the state schools and apply. This even if your student really does not want to go. First of all, it is good to have a back up safety school. More importantly, many non custodial parents take the position that they should only have to pay for a state school, and when the child has not even applied, that becomes the battle cry of the litigation. Better that you and your student show that you have investigated all options, and have a solid argument as to why another school may be a better fit.

Finally, be realistic. What would you and your former spouse or other parent have done if you were still together? If a state school was the only option that your child would have had if you had lived happily ever after, don’t assume that your ex is going to be ordered to foot $50,000 per year ( unless of course they have had a significant change of circumstances for the better since the break up).