M.F.W. VS. G.O. (FM-14-1249-02, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court."

Although it is posted on the internet, this opinion is binding only on the

parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1488-16T2

M.F.W.,

Plaintiff-Respondent,

v.

G.O.,

Defendant-Appellant.

____________________________

Submitted January 24, 2018 – Decided August 2, 2018

Before Judges Koblitz and Suter.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Morris County,

Docket No. FM-14-1249-02.

Joseph J. Fritzen, attorney for appellant.

Budd Larner, PC, attorneys for respondent

(Tremain L. Stanley, of counsel; Patricia M.

Tuckman and Jessie M. Mills, on the brief).

PER CURIAM

Defendant G.O. appeals the November 4, 2016 orders of the

Family Part. The orders denied his cross-motion to enforce Article

V of the Property Settlement Agreement (PSA) concerning college

expenses, that he and plaintiff M.F.W. agreed when they divorced;

granted plaintiff's motion to enforce defendant's compliance with

the PSA and to release their child from being required to apply

for loans or other financial aid; and ordered defendant to pay

seventy percent of his daughter's tuition and expenses to

Georgetown University. We affirm the orders.

I.

Plaintiff and defendant were married in 1991 and had one

child, Jane,1 who was five years old when they divorced in 2003.

They agreed to a comprehensive PSA, which was incorporated into

their Dual Final Judgment of Divorce (FJOD).

The PSA anticipated that Jane might go to college. If so,

the parties agreed that they "shall contribute toward all

reasonable and necessary college educational expenses based on

each party's income and all other relevant financial circumstances

in existence at that time." Under the PSA, Jane "shall apply for

all loans, grants, aid and scholarships available to her, the

proceeds of which shall be first applied to college costs." Where

Jane would go to college was to be "on notice to and with the

consultation of both parties." The decision was not to be made

"unilaterally." Plaintiff and defendant had the "right" to be

actively involved in the application and selection process.

1

This is a fictitious name to protect her privacy.

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The PSA defined "college educational expenses" as "including,

but not limited to, tuition, room and board, books, reasonable

transportation expenses to and from college, application fees,

college preparatory courses, activity fees and other miscellaneous

expenses associated with the child's attendance at college."

Defendant was required to "contribute the sum of $2,000 per year

into a custodial account" for Jane. Defendant "shall" use those

funds "for the child's college educational costs which shall be

applied as follows: [one hundred percent] of the total balance of

the account toward the total college educational costs on the

[first] amount due."

In 2016, Jane was accepted by Georgetown University as a

freshman where the tuition bill for the first semester was

$33,331.50 (inclusive of tuition and a $900 deposit). In July

2016, plaintiff e-mailed defendant about payment. She attached a

spreadsheet of college preparation expenses that she had already

paid. She suggested that the monies saved for Jane's college per

the PSA be applied first to reimburse her for those expenses. For

the remaining balance, plaintiff suggested they should contribute

based on their incomes and other current relevant financial

circumstances. She advised defendant that they should exchange

tax returns. Plaintiff was willing to consider sharing the

3 A-1488-16T2

expenses "equally." Plaintiff's attorney sent a letter to

defendant's attorney in August 2016, making similar suggestions.

The parties could not agree on the amount of college expenses

they each would pay. Plaintiff wanted reimbursement for $11,273.30

in college preparation expenses she paid for Jane. However,

defendant applied the $20,000 that had been saved for Jane under

the PSA to the first tuition bill, leaving a balance of $12,000.

Eventually, this balance was paid in part by defendant and in part

by plaintiff. Defendant did not reimburse plaintiff for the

college preparation expenses.

Jane submitted an application for financial aid before the

Fall 2016 semester began but she did not qualify for needs-based

financial aid. She qualified for an unsubsidized student loan of

$5500.

On October 5, 2016, plaintiff filed a motion to enforce the

college expenses portions of the PSA. Specifically, she requested

an allocation of college expenses that would require defendant to

pay sixty-six percent and plaintiff to pay thirty-four percent,

elimination of the PSA's requirement that Jane apply for loans or

financial aid, and a credit of $9589 for the college preparatory

expenses she had paid. The motion requested certain financial

information from defendant and sanctions against him should he not

comply, and counsel fees.

4 A-1488-16T2

Defendant's cross-motion requested the enforcement of

litigant's rights because of plaintiff's alleged failure to comply

with the PSA. He asked for an order requiring plaintiff to apply

for financial aid or be held accountable for those amounts. He

opposed reimbursement of the college preparatory expenses.

Defendant requested a modification of child support and discovery

of financial information from plaintiff, particularly about

certain trust funds that he claimed were available to her. He

sought payment for his counsel fees.

The trust funds had been the subject of discovery in

connection with the parties' divorce in 2003. They are

accumulation trusts set up by plaintiff's grandmother. One trust

was established by her grandmother's will. Another trust was

created by her grandmother in plaintiff's name by a Trust Deed and

Agreement "to hold income accumulations [in plaintiff's] family

line."

In 2016, a JP Morgan vice president confirmed that the trusts

"are the same entities, with the same dispositive provisions,

documented in the papers filed during 2003." A letter from the

trustees' attorney stated that plaintiff "has no right to receive

anything in her lifetime." According to J.P. Morgan, the Trustee,

"[Jane] is not a current beneficiary of any of these Trusts."

Under the trust document, upon plaintiff's death, the trust account

5 A-1488-16T2

bearing her name would be distributed to those she specified in

her will, and if not specified, to her issue per stirpes.

Plaintiff contends that the trusts were to preserve the assets for

the future benefit of Jane and any other descendant of plaintiff.

Plaintiff and defendant submitted current case information

statements (CIS's) with their motions. Defendant's CIS reflected

net income of $217,412, with total expenses of $14,664 per month.

He has remarried and has another child, who is a minor. In 2003,

when he and plaintiff were divorced, his net income was $1548 per

week as reflected on the Child Support Guidelines worksheet.

Plaintiff's CIS shows net income of $89,499, consisting of

earned and unearned income. Her expenses were $10,998 per month.

In 2003, the trial court imputed $57,148 in annual income to

plaintiff based on certain inherited funds (not the trusts) held

in an asset management account.

Following oral argument, the trial court issued three orders

on November 4, 2016. Regarding plaintiff's motion, the order

enforced paragraphs 20, 21 and 23 of the PSA that pertained to

defendant's obligation to contribute to college expenses. The

order held that defendant failed to comply with these paragraphs.

It required defendant to pay seventy percent of Jane's college

expenses and for plaintiff to pay thirty percent pendente lite

without prejudice. Plaintiff was granted a credit of $9589.92 for

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college preparatory expenses she had previously paid. Jane was

"released of any requirement to apply for or obtain loans and/or

other financial aid for the duration of her college education."

The order provided, "In the event [Jane] is eligible and receives

any scholarship(s) or grant(s), those amounts will first be

deducted from [Jane's] college expenses, with the parties to pay

their pro rata shares of the remainder." Defendant was ordered

to provide copies of the 529 account statements.2

A companion order denied defendant's cross-motion, except for

his request to modify child support, which was granted, modifying

his obligation to $200 per week.

A third order required Jane to file a FERPA3 with her college

"to allow [d]efendant full and complete access to her scholastic

and financial records." Defendant was ordered to communicate his

parenting plans directly with Jane.

In the court's written supplemental statement of reasons

accompanying the orders, the court reviewed the factors in Newburgh

v. Arrigo, 88 N.J. 543, 545 (1982), in allocating the parties'

share of college expenses. The court found that both parents

2

The reference is to Section 529 of the Internal Revenue Code,

permitting tax advantaged savings plans to encourage saving for

future education costs. 28 U.S.C. § 529.

3

FERPA refers to the Family Educational Rights and Privacy Act

of 1974. 20 U.S.C. § 1232g.

7 A-1488-16T2

supported Jane's pursuit of a college education. It did not give

great weight to factor eleven that defendant had not been provided

with advance information about Jane's college selection process.

The court found that "the parties have the financial wherewithal

to meet all of their daughter's financial needs for college." This

was based on plaintiff's reported gross income in 2015, of $96,451

and defendants for the same time period of $268,877. The court

ordered that plaintiff and defendant contribute to payment of the

college expenses based on their reported net incomes after taxes,

finding defendant's net income to be $217,154 in 2015 and

plaintiff's net to be $90,959 for the same time.4 The court ordered

that plaintiff pay thirty percent and defendant pay seventy

percent. He ordered the parties to exchange their tax returns in

subsequent years so that the ratio could be adjusted. The court

found it was "unfair and unjust" to require Jane to apply for "all

loans, grants, aid and scholarships available to her" and to apply

them first to the college costs because Jane "should not be bound

to a contract which she is not a party to" and because the parents

"have a legal obligation to support" her "and cannot compromise

4

We note minor discrepancies between the judge's opinion and

the parties' CIS's. The CIS's reported defendant's net income

as $217,412 and plaintiff's net income as $89,499.

8 A-1488-16T2

that obligation even if they both agree." The court found this

provision of the PSA is "repugnant and will not be enforced."

The trial court modified defendant's child support obligation

to $200 per week, taking into consideration the parties' increased

incomes, the number of days that Jane will be home from college,

and her overnights with each parent per year. The court considered

the factors in Jacoby v. Jacoby, 427 N.J. Super. 109, 113 (App.

Div. 2012), the parties CIS's, and defendant's other child with

his current spouse, in finding that child support of $200 per week

was appropriate.

On appeal, defendant contends that the trial court should

have enforced the PSA as written. It should not have stricken the

requirement that Jane apply for financial aid and loans. He

contends the court erred by considering their incomes in allocating

college costs without considering other financial circumstances

of the parties, such as trust funds available to plaintiff, and

should have determined which college preparatory costs were

reasonable and necessary college expenses. Defendant argues that

the judge did not allocate college expenses based on an appropriate

analysis of the Newburgh factors. Defendant asserts he should

have had a plenary hearing on these issues. If the case is

remanded, defendant asks that it be heard by another judge.

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II.

"[W]e accord great deference to discretionary decisions of

Family Part judges," Milne v. Goldenberg, 428 N.J. Super. 184, 197

(App. Div. 2012), in recognition of the "family courts' special

jurisdiction and expertise in family matters." N.J. Div. of Youth

& Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting

Cesare v. Cesare, 154 N.J. 394, 413 (1998)). However, "[a] trial

court's interpretation of the law and the legal consequences that

flow from established facts are not entitled to any special

deference." Hitesman v. Bridgeway, Inc., 218 N.J. 8, 26 (2014)

(citing Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J.

366, 378 (1995)).

We review orders modifying child support for abuse of

discretion. Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div.

2012) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div.

2006)). "If consistent with the law, such an award will not be

disturbed unless it is manifestly unreasonable, arbitrary, or

clearly contrary to reason or to other evidence, or the result of

whim or caprice." Ibid. (quoting Foust v. Glaser, 340 N.J. Super.

312, 315-16 (App. Div. 2001)). The Family Part's discretion to

determine child support "applies equally to compelling a parent

to contribute to their child's college costs." Avelino-Catabran

v. Catabran, 445 N.J. Super. 574, 588 (App. Div. 2016) (citing

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Gotlib v. Gotlib, 399 N.J. Super. 295, 308 (App. Div. 2008)). "We

must accept the Family Part's determination concerning a parent's

obligation to contribute toward college tuition, provided the

factual findings are supported by substantial credible evidence

in the record and the judge has not abused his or her discretion."

Ibid. (citing Gac v. Gac, 186 N.J. 535, 547 (2006)). Once it is

established that "college contribution is warranted, the inquiry

turns to the amount of the financial obligation itself." Ricci

v. Ricci, 448 N.J. Super. 546, 581 (App. Div. 2017).

In this case, the parties do not dispute that Jane should go

to college, that she should attend Georgetown University or that

they have sufficient resources to pay for her to attend that

school. They anticipated she would attend college when they

divorced because their PSA included a provision about college

expenses. They defined college expenses broadly as "including,

but not limited to," a list of things such as tuition, room, board,

and college preparatory courses.

The PSA did not allocate how much plaintiff or defendant

would pay for Jane's college expenses. Defendant argues that the

trial court did not consider "other relevant financial

circumstances in existence at that time" in allocating defendant's

share of Jane's college expenses. He contends the court should

have considered the trust funds and that he was entitled to

11 A-1488-16T2

discovery about them. He argues plaintiff has taken conflicting

positions with respect to the trusts and that there are fact issues

requiring a hearing.

We agree with the trial court that the trusts should not be

included in allocating college expenses. Nothing in the record

showed that either plaintiff or Jane had the ability to control

or to require distributions from the trusts. Control of the trusts

rests with the corporate trustees. Plaintiff's only "right" in

the accumulation trust was "who will enjoy it at her death by

exercising her 'power of appointment.'" A letter from the

corporate trustee said that Jane "is not a current beneficiary of

any of these trusts." These were the same trusts "with the same

dispositive provisions, documented in the papers filed during

2003," that the parties addressed when they were divorcing. These

trusts were not treated as assets of plaintiff during the divorce.

See Tannen v. Tannen, 416 N.J. Super. 248, 273 (App. Div. 2010)

(providing that "defendant's beneficial interest in the [trust]

was not an 'asset[] held by' her.").

The record showed no inconsistency by plaintiff in her

treatment of the trusts. That Jane may benefit from the trusts,

perhaps after plaintiff's death, does not disprove the

unchallenged evidence that only the trustees can decide how to use

the trust fund moneys. Therefore, we agree with the trial court's

12 A-1488-16T2

decision not to consider the trust funds when allocating college

expenses because neither plaintiff nor Jane controlled these

funds.

The PSA provided that both parties would contribute to Jane's

college expenses based on "each party's income and all other

relevant financial circumstances." The court allocated seventy

percent of the college expenses to defendant and thirty percent

to plaintiff. We disagree with defendant's argument that the

court "repeatedly stated that he would consider only income to the

exclusion of all other financial resources." The court had the

parties CIS's and considered them, which included the parties'

assets and expenses.

Newburgh v. Arrigo, 88 N.J. 529, 545 (1982) requires that

courts examine "all relevant factors" in "evaluating the claim for

contribution toward the cost of higher education," including:

(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

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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.

[Ibid.]

"[A] trial court should balance the statutory criteria of N.J.S.A.

2A:34-23(a) and the Newburgh factors, as well as any other relevant

circumstances, to reach a fair and just decision whether and, if

so, in what amount, a parent or parents must contribute to a

child's educational expenses." Gac, 186 N.J. at 543; see also

Catabran, 445 N.J. Super. at 591 n.8. The "parents' ability to

pay is clearly the most significant" factor. Ricci, 448 N.J.

Super. at 581 (citing Weitzman v. Weitzman, 228 N.J. Super. 346,

358 (App. Div. 1988)).

The court considered the factors under Newburgh. We disagree

with defendant's argument that the trial court allocated college

expenses without proper consideration of these factors. The court

found that factors one, two, three, seven and twelve had been

satisfied. Neither party was disputing that they would contribute

to Jane's college (factor 1). They both valued higher education

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for their child (factor 2). The amount of contribution sought was

all of the college expenses (factor 3). No one argued that Jane

did not have the commitment or aptitude for college or that it was

not consistent with her goals (factors 7 and 12). The court gave

little weight to factor eleven, involving Jane's relationship with

her parents. Both parents wanted Jane to attend college. The

court considered both parents' ability to pay (factor 4). The

court knew it was allocating the expenses for Georgetown (factor

5). The court took into consideration the financial resources of

the parties through consideration of their CIS's (factor 6). The

parties did not present proof of the child's assets (factor 8).

Neither party raised issues about Jane's income or employment

(factor 9). The court addressed loans, financial aid, grants and

scholarships. The court would not enforce the provision regarding

loans and financial aid but included in its order that if Jane did

obtain scholarships or grants, these would be applied to reduce

college expenses (factor 10).

Application of the Newburgh factors did not require a plenary

hearing here. "It is only where the affidavits show that there

is a genuine issue as to a material fact, and that the trial judge

determines that a plenary hearing would be helpful in deciding

such factual issues, that a plenary hearing is required." Shaw

v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976). We review the

15 A-1488-16T2

court's order for abuse of discretion. Costa v. Costa, 440 N.J.

Super. 1, 4 (App. Div. 2015). There were no disputed issues of

fact involving the Newburgh factors that would warrant a hearing.

Defendant argues that the trial court should have enforced

the provision of the PSA that required Jane to apply for loans,

financial aid, grants and scholarships. "Absent 'compelling

reasons to depart from the clear, unambiguous, and mutually

understood terms of the PSA,' a court is generally bound to enforce

the terms of a PSA." Catabran, 445 N.J. Super. at 589 (quoting

Quinn v. Quinn, 225 N.J. 34, 55 (2016)). "[W]here matters in

dispute in a post-judgment matrimonial motion are addressed in a

PSA, courts will not 'unnecessarily or lightly disturb[]' the

agreement so long as it is fair and equitable." Ibid. (alteration

in original) (quoting Quinn, 225 N.J. at 44). However, there is

an exception that "if circumstances have changed in such a way

that strict enforcement of the agreement would no longer be

equitable, a court remains free to alter prior arrangements." Id.

at 590.

The trial court did not enforce this provision because

circumstances had changed. Defendant's net income had increased

from $1548 per week5 in 2003, when the parties divorced, to

5

This is $80,496 annually.

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$217,412 annually, as reported in his 2016 CIS. Plaintiff also

reported higher income. In 2013, she had been imputed an annual

income of $57,148. Her 2016 CIS showed earned and unearned income

net of taxes of $89,499. The court found "unfair and unjust" the

provision that required Jane to apply for loans and financial aid

because it was the parents' obligation to pay for college and they

had the ability to do so. Defendant acknowledged that "[t]he

parties both have significant financial resources and can afford

to send their daughter to Georgetown University."

The court did not err by not enforcing this provision. First,

Jane did apply for financial aid in 2016. She did not qualify for

needs-based financial aid but did qualify for a $5500 unsubsidized

student loan.6 Second, the court's order permits grants and

scholarships to be used to reduce college expenses. We have no

reason to believe that Jane will not pursue these opportunities.

Therefore, the court's order related to student loans and financial

aid. We cannot say, given the parties' incomes, that the court

erred by not requiring Jane to obtain loans or other financial aid

where she would be financially obligated to repay the funds in the

future. Her parents had agreed to pay for her college expenses

under the PSA. This would include any loans to pay those expenses.

6

It is not clear from the record if these funds were obtained.

17 A-1488-16T2

See Finger v. Zenn, 335 N.J. Super. 438, 442 (App. Div. 2000)

(implicitly affirming decision not to require child to "incur any

loans for which the child would be responsible in the future" for

at least the first two years).

Defendant contends that the trial court should not have

provided a credit of $9589.92 to plaintiff for college preparatory

expenses without a hearing. We do not agree that a hearing was

required. Defendant did not take specific issue before the trial

court with any of the expenses; he included that detail for the

first time on appeal. We "will decline to consider questions or

issues not properly presented to the trial court when an

opportunity for such a presentation is available." Nieder v.

Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Neither plaintiff

nor the trial court had the ability to address defendant's actual

objections.

Because we affirm the trial court, we do not consider

defendant's request that the matter be assigned to a different

judge on remand. If the issue were squarely before us, however,

we would deny the request. The fact that the judge ruled against

a party is not grounds for disqualification. See Strahan v.

Strahan, 402 N.J. Super. 298, 318 (App. Div. 2008) ("Bias cannot

18 A-1488-16T2

be inferred from adverse rulings against a party."). In addition,

the record did not support the need for disqualification.7

After carefully reviewing the record and the applicable legal

principles, we conclude that defendant's further arguments are

without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

Affirmed.

7

Defendant also requested an award of attorney's fees in his

cross-motion before the trial court. This issue was not raised

in his merits brief on appeal. We consider it to be waived.

Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014); Drinker Biddle

v. N.J. Dep't of Law & Pub. Safety, Div. of Law, 421 N.J. Super.

489, 496 n.5 (App. Div. 2011) (noting that claims not addressed

in merits brief are deemed abandoned); see Pressler & Verniero,

Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2018).

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