KEITH FLETCHER v. TAYO EUSTON TAYO FLETCHER (2013)

Plaintiff Keith Fletcher appeals the Family Part's April 13, 2012 order requiring him to contribute to his children's college expenses.   We affirm in part, but remand to the Family Part for an evidentiary hearing to reconsider the amount and percentage of Fletcher's contribution.

I.

We discern the following facts and procedural history from the record on appeal.

Fletcher and defendant Tayo J. Euston were married in 1985.   They have two children:  a son, born in 1986, and a daughter, born in 1989.   They were divorced in 1995.   In a property settlement agreement (PSA) incorporated into their judgment of divorce, they agreed that “[b]oth parties shall contribute to the post-secondary educational costs of the children to the amount that they are financially able to do so.   Furthermore, it is the intention of the parties that the children shall obtain and apply for any and all available student loans, scholarships and grants.”

The son attended Drew University and graduated with a Bachelor of Arts degree in May 2008.   He took out $2,546.25 in student loans, and received $36,000 in scholarships and grants.   The remaining college expenses of $126,699.75 were paid by Euston and her current husband.

The daughter attended Fairleigh Dickinson University, Sussex County Community College, and Centenary College.   She took $3500 in student loans, and was awarded $24,100 in scholarships and grants.   The remaining expenses of $59,063.50 were also paid by Euston and her current husband.

Fletcher's earnings during the years the children were in college, as evidenced by his W–2 forms, were as follows:  $167,155 in 2004;  $147,133 in 2006;  $160,911 in 2007;  $167,179 in 2008;  and $115,899 in 2009.   He certified that he was unable to locate his 2005 W–2. Fletcher's case information statement indicated an estimated income of $110,000 for 2010, with monthly expenses of $11,176.   However, no supporting documentation was provided.   He certified that he was facing reduced income as a consultant in a weakened California economy, and that he and his current wife provided substantial financial support for her brothers and their families, leaving him financially unable to contribute to his children's college education.

Euston's earnings for the same period, as evidenced by her tax filings, were as follows:  $0 in 2004;  $1382 in 2005;  $5829 in 2006;  $6084 in 2007;  $6285 in 2008;  $7468 in 2009;  $10,043 in 2010;  and $12,459 in 2011.   The children also worked and earned money to contribute toward their expenses while attending college.

Fletcher has not been involved in his children's lives since he moved to California in 1997.   The parties assert differing reasons for the lack of relationship.   Fletcher was not consulted with respect to the children's college applications or the related financial decisions.

In June 2010, Fletcher filed a motion seeking to have the two children emancipated and to terminate his obligation to pay child support.   Euston filed a cross-motion to enforce litigant's rights, seeking, in addition to other relief, an order compelling Fletcher to reimburse her for the children's college expenses.

In October, the motion judge entered an order emancipating the son effective May 30, 2008.   The order also reduced Fletcher's child support obligation to $178 per week, effective as of May 30, 2008.   His child support obligation was to end altogether on March 20, 2011, the date scheduled for the daughter's emancipation.

The judge ordered the parties to exchange information concerning their finances and the children's college expenses.   In the event they were unable to reach an agreement on the sharing of the college expenses, Fletcher was to file a certification addressing the factors concerning payment of college expenses found in Newburgh v. Arrigo, 88 N.J. 529 (1982).

Euston filed motions to enforce litigant's rights in April 2011 and February 2012, seeking Fletcher's financial information and sanctions against him for failing to comply with the judge's order requiring him to meet and confer with her regarding college expenses.   Fletcher filed a cross-motion in March 2012, seeking a declaration that he had no obligation to contribute to college expenses.   Both parties waived oral argument.

Based upon the parties' certifications, the motion judge issued the April 13, 2012 order, requiring Fletcher to reimburse Euston $111,475.95, which was sixty percent of the children's college expenses.   Euston was responsible for twenty percent, and each child was required to contribute twenty percent towards his or her own educational expenses.   The order was accompanied by a statement of reasons, detailing the judge's consideration of the factors outlined in Newburgh, supra, 88 N.J. at 545.

In reaching his decision, the judge noted that Fletcher had not provided proof of his current income, and imputed income of $151,655 to him by averaging his previous five W–2 forms.   The judge found the college expenses reasonable and that the children had made reasonable contributions, and determined that Fletcher was in a better position to pay a larger share based on the significant income discrepancy between the parties.   Fletcher was ordered to pay Euston $1200 per month until his obligation is satisfied.   This appeal followed.

II.

On appeal, Fletcher argues that the motion judge erred in failing to conduct a plenary hearing to determine disputed issues of fact.

We ordinarily accord great deference to the discretionary decisions of Family Part judges.  Donnelly v. Donnelly, 405 N.J.Super. 117, 127 (App.Div.2009) (citing Larbig v. Larbig, 384 N.J.Super. 17, 21 (App.Div.2006)).   Similar deference is accorded to the factual findings of those judges, if they are made following an evidentiary hearing.  Cesare v. Cesare, 154 N.J. 394, 411–12 (1998).   Finally, a judge's purely legal decisions are subject to our plenary review.  Crespo v. Crespo, 395 N.J.Super. 190, 194 (App.Div.2007) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995));  LoBiondo v. O'Callaghan, 357 N.J.Super. 488, 495 (App.Div.), certif. denied, 177 N.J. 224 (2003).

The disposition of Euston's application turned on the motion judge's evaluation of the Newburgh factors.   Although a judge is required to consider “all relevant factors,” the following were specifically articulated by the Supreme Court:

(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 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 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;  and

(12) the relationship of the education requested to any prior training and to the overall long-range goals of the child.

[Newburgh, supra, 88 N.J. at 545.]

In the context of allocating children's college expenses, the Family Part has “broad equitable powers” to achieve “substantial justice.”  Weitzman v. Weitzman, 228 N.J.Super. 346, 358 (App.Div.1988), certif. denied, 114 N.J. 505 (1989).   In this case, the parties agreed in the PSA that they would share their children's college expenses after the children had applied for and obtained “any and all available student loans, scholarships and grants.”   Consequently, Newburgh factors (1) and (2) have been satisfied.   In addition, the record reflects no significant dispute that the children were qualified to attend college and that they have received an appropriate education at college, which satisfies Newburgh factors (5), (7), and (12).   Consequently, we affirm the order to the extent it required Fletcher to contribute to his children's college expenses.

The dispute on appeal centers on the amount of the expenses, their allocation as between the parties, and Fletcher's ability to pay.   Two complicating factors is this case are (1) the factual dispute concerning the origin of the conceded lack of relationship between Fletcher and his children and (2) the fact that there was no effort to address the issue of college expenses with Fletcher before the children started college.   Indeed, Euston did not raise the issue until Fletcher sought to emancipate the children.

As a consequence of both, Fletcher had no role in the choice of colleges or the efforts to obtain grants and financial aid.   Although not necessarily determinative, the source of the estrangement can inform the judge's exercise of discretion on the issue of college expenses, as can the timing and manner of the request for financial assistance.   See Gac v. Gac, 186 N.J. 535, 546–47 (2006);  Finger v. Zenn, 335 N.J.Super. 438, 444–45 (App.Div.2000), certif. denied, 167 N.J. 633 (2001).

Having reviewed the record on appeal in light of the applicable law, we have concluded that a remand is required for further consideration of the Newburgh factors as they relate to (1) whether the actual expenses or some lesser amount should be used as the basis for reimbursement, (2) the allocation as between the parties, and (3) the amount of the monthly payment.

We express no view on the merits of those issues, but only require that they be reconsidered on a fuller record.   The judge should require the parties to supplement the record as necessary and, because the judge's exercise of discretion in cases such as this is quite fact-sensitive, hold a plenary hearing.

Affirmed in part and remanded.   We do not retain jurisdiction.

PER CURIAM