SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued January 30, 2006 -- Decided May 18, 2006
WALLACE, J., writing for a Unanimous Court.
This case involves the question of whether a father must pay the college debt owed by his estranged daughter.
Gaynell and Paul Gac were divorced in Ocean County in 1987. At the
time of their divorce, the Gac's two children, Justin and Alyssa, were twelve
and nine, respectively. The trial court did not order visitation between the father
and the children. Although the father attempted to establish a "one way" relationship
by sending occasional gifts, cards, and letters -- as recommended by Dr. Mathias
Hagovsky, who performed a psychological evaluation of the family -- in 1994, the
father received a package containing many of the cards, letters, and checks he
had sent the children. The package also included a message from then sixteen-year-old
Alyssa telling him that they didn't "want anything to do with you."
In 1989, the father had remarried and became the stepfather to two children.
A child was born to that family in 1994.
Eventually, Alyssa sought to attend college. During the college selection process, she did
not involve her father in any way. On financial aid applications, she noted
that her father was not part of her life, was not assisting in
financing her way through college, and that his whereabouts were currently unknown. Throughout
this period, the father continued to make child support payments.
Alyssa graduated from Quinnipiac College, a private school, in 2000. On July 11th
of that year, the father moved to terminate child support for both Justin
and Alyssa. The mother opposed the motion and cross-moved for continuation of child
support for Alyssa and for reimbursement of the cost of her college tuition.
The motion court terminated the father's child support but ordered him to pay
up to one-half of Alyssa's outstanding college loans.
On appeal, the Appellate Division remanded the matter to the trial court for
a hearing to consider the twelve factors enunciated in Newburgh v. Arrigo,
88 N.J. 529, 545 (1982), in connection with a divorced parent's financial obligations in
respect of a child's college education. The trial court concluded that although the
father might not have paid much toward Alyssa's college education had the marriage
lasted, he had "some responsibility for her higher undergraduate education." The court directed
the father to pay 40% of Alyssa's loans, including accumulated interest.
The father again appealed to the Appellate Division. That court noted that it
was difficult to balance the Newburgh factors in this case because there were
equitable considerations supporting both sides. Although the Appellate Division concluded that the father
had to contribute to Alyssa's college loans, it limited his reimbursement to $20,000,
inclusive of interest.
The Supreme Court granted Paul Gac's petition for certification.
HELD: Under the unusual circumstances presented and in light of the lateness of
the application for financial contribution, a fair balancing of the factors enumerated in
Newburgh v. Arrigo,
88 N.J. 529, 545 (1982), and the relevant provisions of
the statute relating to child support, N.J.S.A. 2A:34-23(a)(5), demonstrates that the non-custodial parent
should not have to contribute to the child's college loans.
1. The father argues that the first Newburgh factor -- whether a non-custodial
parent would have contributed to the child's higher education if the family had
remained together -- should be viewed as a threshold that the mother has
not met. In addition, he argues that it is a violation of the
New Jersey and federal constitutions to compel divorced parents, but not married parents,
to pay for their college educations. (pp. 7-8)
2. The need and capacity of a child for higher education are two
of many factors a court must consider in determining the amount of child
support. The Legislature and the courts have long recognized a child's need for
higher education and that this need is a proper consideration in determining a
parent's child support obligations. Six years after the decision in Newburgh, the Legislature,
in amending the child support statute, essentially approved the criteria set forth in
the Court's opinion. Thus, a trial court should balance the statutory criteria and
the Newburgh factors, as well as any other relevant circumstances, to reach a
fair and just decision. (pp. 9-12)
3. The first Newburgh factor is not a threshold factor. Rather, it is
one of the numerous factors to be evaluated and weighed in determining whether
a non-custodial parent must contribute to higher education expenses. Based on the factual
findings of this case, the Court concludes that a fair balancing of the
factors and other pertinent facts favors the father's position. (pp. 12-15)
4. A relationship between a non-custodial parent and a child is not required
for the custodial parent or the child to ask the non-custodial parent for
financial assistance to defray college expenses. In the within matter, during the period
in question the mother received child support from the father and could have
sought additional support for Alyssa's education. Also, Alyssa could have sought financial assistance
from her father before she incurred her college expenses. Neither application was made
until the father sought to terminate child support after Alyssa had graduated from
college. The Newburgh factors, reaffirmed in this opinion, contemplate that a parent or
child seeking contribution towards the expenses of higher education will make the request
before the educational expenses are incurred. The failure to do so will weigh
heavily against the grant of a future application. (pp. 15-16).
5. It is not necessary for the disposition of this appeal for the
Court to decide the constitutional issue raised by the father. The Court therefore
declines to consider it. (p. 17)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED
to the trial court for the entry of an appropriate order.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, and RIVERA-SOTO join in
JUSTICE WALLACE's opinion.
SUPREME COURT OF NEW JERSEY
GAYNELL GAC,
Plaintiff-Respondent,
v.
PAUL GAC,
Defendant-Appellant.
Argued January 30, 2006 – Decided May 18, 2006
On certification to the Superior Court, Appellate Division.
William J. Courtney argued the cause for appellant.
Gerard C. Fallon argued the cause for respondent (Sonageri & Fallon, attorneys).
Charles A. Matison, President, submitted a brief on behalf of amicus curiae New
Jersey Chapter of American Academy of Matrimonial Lawyers (Mr. Matison, attorney; Mr. Matison
and Dale E. Console, on the brief).
Stuart A. Hoberman, President, submitted a letter brief on behalf of amicus curiae
New Jersey State Bar Association.
JUSTICE WALLACE, JR. delivered the opinion of the Court.
This case raises the issue whether a father must pay the college debt
owed by his estranged daughter. In Newburgh v. Arrigo,
88 N.J. 529, 545
(1982), this Court established a twelve-factor balancing test to aid in determining whether
a court should require a parent to contribute to the cost of a
child’s post-secondary education. In the present case, the trial court balanced those factors
and ordered a father to contribute to his estranged daughter’s college loans. The
Appellate Division concluded that the lateness of the application seeking contribution from the
non-custodial parent and the lack of any adjustment in his child support payments
while the child was in college required a downward adjustment in the amount
he should pay. We reverse and hold that under the unusual circumstances presented,
a fair balancing of the Newburgh factors demonstrates that the non-custodial parent should
not have to contribute to the child’s college loans.
The facts of the case are detailed in the decision of the Appellate Division in the first appeal. Gac v. Gac, 351 N.J. Super. 54 (2002). We recite only the procedural history and those facts that are necessary to decide this matter.
Defendant Paul Gac and plaintiff Gaynell Gac were divorced in 1987. During the divorce proceedings, the trial court ordered Dr. Mathias Hagovsky to perform a psychological evaluation of the family. At that time, the two children of the marriage, Justin and Alyssa, were twelve and nine, respectively. Based on Dr. Hagovsky’s recommendation, the trial court did not order visitation between defendant and the children. Thereafter, defendant followed Dr. Hagovsky’s recommendation to establish a “one way” relationship with the children via occasional letters, gifts, and telephone calls until the children were ready to initiate a relationship with him. He made numerous attempts to communicate with his children by means of packages, cards, and letters, but the children did not respond. In 1994, defendant received a packet in the mail containing many of the cards, letters, and checks he had sent to his children. Included in the packet was a letter from then sixteen-year-old Alyssa stating, “We don’t want to hear from you. We don’t want anything to do with you.”
That same year, defendant moved for a temporary reduction in child support because he was unemployed. He also sought family mediation and asked the court to compel plaintiff to comply with the divorce decree and send him updates regarding the children’s health, schooling, and social developments. The trial court granted defendant’s request for bimonthly reports of the children but denied, without prejudice, his application for family mediation. The court reserved decision on defendant’s motion to temporarily reduce child support, and defendant subsequently obtained employment.
In 1989, defendant remarried and became the stepfather of two children, and in 1994 he and his new wife had a child of their own. Afterwards, defendant enrolled in school to train to be a paramedic and accepted a job in Philadelphia. Based on that career move, he purchased a car for his commute from his home in Barnegat to Philadelphia, and also purchased a second home in Philadelphia to establish residency for his work as a paramedic.
Eventually, Alyssa sought to attend college. During the college selection process, she never consulted or otherwise communicated with her father before choosing Quinnipiac College, a relatively expensive private school. Alyssa indicated on the financial aid applications she submitted between 1996 and 1999 that her father was not a part of her life, he was not assisting her in financing her college education, and his whereabouts were unknown. In short, neither plaintiff nor Alyssa asked defendant for help in financing Alyssa’s college education.
Throughout that time period, defendant continued to make his child support payments. In 1996, Justin approached his father and the two began to reestablish a relationship. At some point, Justin informed defendant that Alyssa was attending Quinnipiac.
Alyssa graduated from Quinnipiac in May 2000. On July 11, 2000, defendant filed a motion to terminate child support for Justin and Alyssa. Plaintiff opposed the motion and cross-moved for continuation of child support payments for Alyssa and reimbursement of the cost of Alyssa’s college tuition. The motion court terminated child support but ordered defendant to pay up to one-half of Alyssa’s outstanding obligations for college loans. The order required plaintiff to provide proof of the amount of Alyssa’s loans, excluding loans from family members, and was stayed pending discovery. Following discovery and a hearing, the trial court lifted the stay and ordered defendant to reimburse Alyssa $35,000.
Defendant appealed. The Appellate Division reversed and remanded for the trial court to consider all of the Newburgh factors. Id. at 65. In its remand, the Appellate Division instructed the trial court to consider that
(1) defendant was excluded from participating in decisions pertaining to Alyssa’s college education, (2) plaintiff and Alyssa chose a relatively expensive private college rather than available New Jersey or Vermont institutions, (3) Alyssa apparently did not seek summer employment during several of the years she attended college, (4) there may have been additional grants available that would have defrayed a portion of Alyssa’s college expenses, and (5) plaintiff did not seek reimbursement of Alyssa’s student loans during the years these obligations were incurred, thus possibly impairing defendant’s ability to make sound financial judgments.
[Id. at 63-64.]
The panel also noted the relevance of Moss v. Nedas,
289 N.J. Super. 352 (App. Div. 1996), in which the court “found it inappropriate to compel
the father to contribute to his daughter’s college expenses” when there was no
“meaningful father-daughter relationship.” Gac, supra, 351 N.J. Super. at 64-65 (quotations omitted).
At the remand hearing held on February 10, 2003, Alyssa and defendant both
testified. In a subsequent letter opinion, the trial court summarized the testimony, made
findings of fact, and concluded that “[e]ven though Mr. Gac might not have
paid much for Alyssa’s education had the marriage lasted, . . . he
has some responsibility for her higher undergraduate education.” The trial court ordered defendant
to pay 40% of Alyssa’s loans plus interest on that debt that had
accumulated from the outset, adding that “Alyssa chose [to attend] a more expensive
school” than necessary, without any consultation with her father.
Defendant again sought relief in the Appellate Division. In an unpublished opinion, the
Appellate Division expressed the difficulty in properly balancing the Newburgh factors in this
case because there were equitable considerations supporting each side. The panel accepted the
trial court’s finding that Alyssa still feared her father and agreed that was
relevant to the trial court’s weighing of the Newburgh factors. The panel balanced
the finding that Alyssa should not be penalized for her estrangement from her
father against the findings that defendant was not consulted when Alyssa incurred college
expenses, a less expensive college was not considered, and defendant paid $225 a
month in child support throughout Alyssa’s four years in college. The court found
it significant that plaintiff’s cross-motion was not made until after Alyssa completed college
and after defendant moved to terminate his child support obligation, but concluded that
defendant must contribute to his daughter’s college loans. The panel disagreed, however, with
the amount of the trial court’s award, found it prudent to terminate the
litigation, and ordered defendant to reimburse Alyssa $20,000, inclusive of interest.
We granted defendant’s petition for certification.
185 N.J. 35 (2005). We subsequently granted
amici curiae status to the New Jersey State Bar Association (Association) and the
New Jersey Chapter of the American Academy of Matrimonial Lawyers (Academy).
Defendant argues that a parent who would not have contributed to his child’s college education if the family had remained together should not have to contribute to that child’s college education after a divorce. Essentially, defendant asserts that the first Newburgh factor, which addresses that issue, is a threshold question. Defendant also argues, for the first time in his petition for certification, that it is a violation of the United States and New Jersey Constitutions to compel divorced parents, but not married parents, to pay for their children’s college educations. In contrast, plaintiff argues that the lack of a relationship between defendant and his daughter and the court’s finding that he would not have paid for college expenses if the family remained intact are only two factors among many to be weighed under Newburgh. Plaintiff also contends that this Court should not consider the constitutional argument because defendant failed to raise it in the prior proceedings, but if the Court addresses the argument, there is no constitutional violation. The Association as amicus curiae takes no position regarding the merits of the appeal but asserts that the Newburgh factors should remain determinative in setting a non-custodial parent’s contribution to his or her child’s college education. The Association urges that a parent’s constitutional rights are protected through the highly deliberate and detailed approach required when the Newburgh factors are considered.
Similarly, the Academy takes no position on the merits. It urges that an obligation of divorced parents to contribute to their children’s college educations under appropriate circumstances as defined in Newburgh does not violate either the United States or New Jersey Constitutions. The Academy notes that except for Pennsylvania, no other state has found a constitutional infringement.
The need and capacity of a child for higher education are two of the many factors that a court must consider in determining the amount of child support to order. N.J.S.A. 2A:34-23(a)(5). In general, a parent’s responsibility to pay child support terminates when the child is emancipated. See Newburgh, supra, 88 N.J. at 542-43. We noted in Newburgh that “[e]mancipation can occur upon the child’s marriage, [upon] induction into military service, by court order based on the child’s best interests, or by attainment of an appropriate age.” Id. at 543 (citations omitted). The facts of each case will control when a child is emancipated. Although there is no fixed age when emancipation occurs, N.J.S.A. 9:17B-3 provides that when a person reaches eighteen years of age, he or she shall be deemed to be an adult.
The Legislature and our courts have long recognized a child’s need for higher education and that this need is a proper consideration in determining a parent’s child support obligation. Writing for the Court in Newburgh, supra, Justice Pollock set forth a non-exhaustive list of twelve factors a court should consider in evaluating a claim for contribution toward the cost of higher education. 88 N.J. at 545. The enumerated factors are
(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.
[Ibid.]
“Six years [after Newburgh was decided], the Legislature essentially approved those criteria when
amending the support statute, N.J.S.A. 2A:34-23(a). Compare N.J.S.A. 2A:34-23(a) (listing factors to consider
in determining support) with Newburgh, supra, 88 N.J. at 545 (listing factors to
consider in determining payment of education expenses).” Kiken v. Kiken,
149 N.J. 441,
449 (1997). Thus, 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.
In the first appeal of this matter, the Appellate Division rightly concluded that
a remand was necessary for the trial court to make findings of fact
and conclusions of law. Gac, supra, 351 N.J. Super. at 65. The Appellate
Division emphasized several relevant facts the court should consider on remand. See id.
at 63-64. In particular, the court cited Moss, supra, 289 N.J. Super. at
353, where the Appellate Division affirmed an order rejecting a claim for contribution
to college expenses in a case with facts similar to the present case.
Gac, supra, 351 N.J. Super. at 64-65. Nevertheless, the Appellate Division cautioned:
We do not read Moss as holding that a child’s rejection of a
parent’s attempt to establish a mutually affectionate relationship invariably eradicates the parent’s obligation
to contribute to the child’s college education. In this case, for example, a
judge could reasonably find from the evidence that defendant’s abusive conduct during the
marriage so traumatized the children as to render nugatory any real possibility of
a rapprochement. In that event, it would not be reasonable to penalize Alyssa
for the defendant’s misconduct. Nor would it be reasonable to reward defendant by
removing his financial obligation to contribute to his daughter’s college costs. There are
indeed circumstances where a child’s conduct may make the enforcement of the right
to contribution inequitable, but here it is claimed that it was the defendant
himself who was the architect of his own misfortune.
[Id. at 65.]
We turn now to analyze the particular circumstances of this case to ascertain
whether defendant must contribute to his daughter’s educational expenses. Defendant argues that based
solely on the trial court’s finding that it was unlikely he would have
contributed willingly to Alyssa’s education if the family had remained intact, he should
not be compelled to contribute to Alyssa’s education. We disagree with that argument.
Defendant remarried and has a daughter and two stepchildren from that marriage. In
his original certification in support of his motion to terminate child support, defendant
noted his limited resources and stated that since the divorce in June of
1987, he had consistently paid child support and continued to do so even
after his son was emancipated. He sought to terminate support so he could
apply that money towards the needs of his current family and perhaps establish
an educational fund for his five-year-old daughter.
It is self-evident that it is a difficult task for the fact-finder to
determine what a parent’s behavior would have been if the family had remained
intact. Once divorce enters the picture, any effort to gauge how parents would
have reacted to educational expenses if they had remained married is fraught with
uncertainty. This case is a prime example of that. As noted, although defendant
testified that he made no contributions to his stepdaughter’s college education beyond an
occasional $100 gift, he certified in support of his motion to terminate child
support that he wanted to establish an educational fund for his daughter from
his second marriage. Those inherently contradictory claims highlight the speculative nature of defendant’s
argument.
Unique problems arise when parents divorce. The heightened economic concerns and animosity that
may develop as part of the divorce process in all too many cases
may influence a parent’s viewpoint as to how he or she would have
acted if the family had remained together. Consequently, we have no hesitation in
concluding that the first Newburgh factor is not a threshold factor, but rather,
is one of the numerous factors to be evaluated and weighed in determining
whether a non-custodial parent must contribute to higher education expenses.
In assessing the Newburgh factors, the trial court found: (1) defendant likely would
not have assisted Alyssa willingly had the family remained intact; (2) defendant’s values
and goals towards higher education likely would not have led him to pay
for Alyssa’s college education; (3) Alyssa never sought a relationship with defendant and
never asked him to contribute to her educational loans until defendant sought to
terminate support; (4) defendant earned $50,000 in 2000, and his child support obligation
was terminated, while plaintiff’s financial resources were limited; (5) Alyssa could have applied
to and attended state universities and community colleges in New Jersey or Vermont,
but instead she selected an expensive private school; (6) Alyssa was highly motivated
to obtain a college degree; (7) Alyssa received loans from her maternal grandparents
and earned $6,921 in 1999, $8,070 in 2000, and $11,573 in 2001; (8)
Alyssa’s ability to work during her first two years at Quinnipiac was hindered
because she required extensive tutoring; (9) Alyssa obtained all the financial aid she
could and received no grants; (10) Alyssa and defendant had no relationship; (11)
defendant followed Dr. Hagovsky’s recommendations to send cards and tried to cultivate a
relationship with Alyssa, but his many attempts were rebuffed; (12) Alyssa did not
speak to her father about her post-secondary education or ask him to help
fund it; (13) defendant was largely to blame as a result of “the
atmosphere created by [him] and the impression on Alyssa as set forth in
full detail in the report of Dr. Hagovsky”; (14) Alyssa’s summer and school-year
employment contributed little to her college costs; and (15) Alyssa desired a career
in business and obtained employment as a restaurant manager. Based on those factual
findings, we conclude that a fair balancing of the Newburgh factors and other
pertinent facts favors defendant’s position that he should not have to contribute to
Alyssa’s educational expenses.
A relationship between a non-custodial parent and a child is not required for
the custodial parent or the child to ask the non-custodial parent for financial
assistance to defray college expenses. Even though Alyssa did not have a relationship
with her father, plaintiff nonetheless received child support for Justin and Alyssa during
this entire period and could have sought additional support for Alyssa’s education. Also,
if Alyssa wanted financial assistance from her father, she could have made the
request before she incurred her college expenses. Neither plaintiff nor Alyssa made such
a request until after defendant sought to terminate child support, and Alyssa had
graduated from college. The failure of both plaintiff and Alyssa to request that
defendant assist in paying Alyssa’s educational expenses at a time that would have
enabled defendant to participate in Alyssa’s educational decision as well as to plan
for his own financial future weighs heavily against ordering him to contribute to
her educational expenses after her education was completed.
Obviously, the factors set forth in Newburgh and reaffirmed today contemplate that a
parent or child seeking contribution towards the expenses of higher education will make
the request before the educational expenses are incurred. As soon as practical, the
parent or child should communicate with the other parent concerning the many issues
inherent in selecting a college. At a minimum, a parent or child seeking
contribution should initiate the application to the court before the expenses are incurred.
The failure to do so will weigh heavily against the grant of a
future application.
See footnote 1
Here, plaintiff did not seek contribution from defendant until after Alyssa graduated from
college and after defendant sought to terminate his child support obligation. We conclude
that those facts are significant and tip the scale in favor of denial
of plaintiff’s request for contribution. It was a mistaken exercise of discretion for
the trial court to order otherwise.
The courts below understood this case to be about the proper balancing of the Newburgh factors within the framework of the circumstances presented. For the first time, before this Court, defendant advances a constitutional argument.
On numerous occasions, we have expressed our reluctance to decide issues that were not addressed in the trial court or the Appellate Division. See, e.g., Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 761 (1989). We have applied that principle even when a constitutional issue is presented. See Farley v. $168,400.97, 55 N.J. 31, 46 (1969); Roberts Elec., Inc. v. Founds. & Excavations, Inc., 5 N.J. 426, 429, 432 (1950). Recently, we restated that a constitutional issue should not be decided “unless its resolution is imperative to the disposition of litigation.” Randolph Town Ctr., L.P. v. County of Morris, 186 N.J. 78, 80 (2006) (citations omitted). It is not necessary for the disposition of this appeal that we decide the constitutional issue, and we therefore decline to do so.
In summary, we hold that a fair evaluation of the Newburgh factors, the criteria in N.J.S.A. 2A:34-23(a), and in particular the lateness of the application, require the conclusion that plaintiff’s request for defendant to contribute to his daughter’s college loans be denied.
VI.
The judgment of the Appellate Division is reversed. We remand for entry of an order consistent with the views expressed herein.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, and RIVERA-SOTO join in JUSTICE WALLACE’s opinion.
SUPREME COURT OF NEW JERSEY
NO. A-9 SEPTEMBER TERM 2005
ON CERTIFICATION TO Appellate Division, Superior Court
GAYNELL GAC,
Plaintiff-Respondent,
v.
PAUL GAC,
Defendant-Appellant.
DECIDED May 18, 2006
Chief Justice Poritz PRESIDING
OPINION BY Justice Wallace
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST
Footnote: 1
Because defendant did not raise the laches doctrine, we do not address it.