Opinion
DOCKET NO. A-5996-11T1
03-22-2013
PETER BOLTEN, Plaintiff-Appellant, v. PATRICIA COVIELLO f/k/a PATRICIA BOLTEN, Defendant-Respondent.
Peter Bolten, appellant pro se. Lovas, Akselrad & Joseph, attorneys for respondent (Susan M. Joseph, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Carroll.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-46212-92.
Peter Bolten, appellant pro se.
Lovas, Akselrad & Joseph, attorneys for respondent (Susan M. Joseph, on the brief). PER CURIAM
Plaintiff Peter Bolten appeals from portions of a Family Part post-judgment order dated June 20, 2012 declaring his younger son emancipated "effective on his twenty-second birthday" in January 2012, but continuing plaintiff's obligation to contribute toward that son's college expenses after that date.
I
Plaintiff and defendant Patricia Coviello were married in 1985 and had two sons who were respectively born in 1986 and 1990. A judgment of divorce (JOD) was entered on December 2, 1992. The JOD incorporated an interspousal agreement (the Agreement) between the parties. The Agreement gave residential custody to defendant and visitation rights to plaintiff. Article V, 5.1 of the Agreement provided, in relevant part, that emancipation of the children was to occur under the following circumstances:
A. Reaching the age of eighteen years (unless such age is attained while the child is attending high school) or the completion of four continuous academic years of college, whichever last occurs;
. . . .
G. Notwithstanding anything contained in subparagraph A above, an emancipation event shall be deemed deferred beyond the twenty-first birthday of the child only if and so long as the child pursues college education with reasonable diligence and on a normally continuous basis and in no event beyond the twenty-second birthday of the child unless the delay is caused by the injury or illness of the child.
[Emphasis added].
With regard to educational expenses, the Agreement provided that a determination as to apportionment would be "deferred until each child attains the appropriate age[.]"
On June 19, 2003, the parties agreed to a consent order (the Consent Order) apportioning their children's college expenses as follows:
The mother was represented by counsel; the father appeared pro se.
a. One-third (1/3) of tuition, room and board expenses to be paid by the father . . . by direct payment to the school prior to the due date.The parties also agreed in the Consent Order to equally share the cost of books, school fees, and other necessary costs related to school for the children.
b. One-third (1/3) of tuition, room and board expenses to be paid by the mother . . . by direct payment to the school prior to the due date.
c. One-third (1/3) of tuition, room and board expenses to be paid by way of student loans from each son.
The parties' younger son, whose college expenses are the sole focus of this appeal, began college at Temple University in the fall of 2008. At the time of the motion he had just entered his ninth continuous semester at Temple. It was anticipated that he would graduate following the conclusion of the fall semester in December 2012.
The parties' older son previously graduated from the Georgia Institute of Technology in the fall of 2008, after nine semesters. He was age twenty-two at the time.
In May 2012, plaintiff moved to emancipate the younger son, to terminate his responsibility to fund the younger son's college education, and for other relief that is not the subject of this appeal. Defendant cross-moved for an order directing plaintiff to pay $8803.53 for unpaid college expenses as of April 23, 2012.
On June 20, 2012, the motion judge granted plaintiff's motion for emancipation, effective as of the younger son's twenty-second birthday in January 2012. The judge nevertheless declined to terminate plaintiff's ongoing obligation for college expenses, and ordered plaintiff to pay defendant $9368.06, representing plaintiff's then-accrued unpaid contributions for the younger son's college expenses and tuition, within sixty days of the order. Finally, the judge denied plaintiff's other requests for relief.
Of the $9368.06 total, $879 appears to have been for tuition after the younger son's twenty-second birthday, but it is unclear what other amounts from this total may have accrued after that date.
The motion judge wrote in an accompanying statement of reasons that the parties' 1992 Agreement and the 2003 Consent Order both governed the determination of when the son should be deemed emancipated. Upon reviewing those documents, the judge concluded, "the parties' agreement is clear that, regardless of [the son's] attendance at college, the triggering event for his emancipation is his turning twenty-two[.]" The judge therefore declared the younger son, who had already turned twenty-two, emancipated as of the date of his twenty-second birthday in January 2012.
The motion judge next addressed plaintiff's obligation to pay college expenses. The judge noted that "[n]owhere in the [Agreement] did the parties place a limitation or conditions upon their responsibility to either pay school or pay the other party, including emancipation." The judge concluded that the plaintiff should not, then, be relieved of his obligation to pay for the younger son's ongoing college expenses. Accordingly, plaintiff was ordered to pay his share of those expenses.
This appeal followed.
II
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)). While we respect the Family Court's special expertise, we may exercise more extensive review of trial court findings that do not involve a testimonial hearing or assessments of witness credibility. Cf. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (stating that deference to Family Court conclusions is not required where "no hearing takes place, no evidence is admitted, and no findings of fact are made").
On appeal, plaintiff argues that the motion judge improperly ordered him to continue making payments for his younger son's education beyond the date of that son's emancipation. Plaintiff contends that it was the intent of the Agreement to support the children through college, but only until each child turned twenty-two. Defendant denies that this was the intent of the Agreement. She emphasizes that the 2003 Consent Order contains no limitation on age or length of college attendance that would trigger termination of either parent's responsibility for college expenses.
Defendant has not appealed the portion of the order declaring the younger son emancipated.
By statute, parents are presumptively required to provide for the financial support of their unemancipated children. N.J.S.A. 2A:34-23(a). Conversely, "emancipation is the act by which a parent relinquishes the right to custody and is relieved of the duty to support a child." Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). Emancipation can occur, for example, upon the child's marriage, entrance into military service, attainment of the age of majority, or by court order in the child's best interest. Ibid. "In appropriate circumstances, parental responsibility includes the duty to assure children of a college and even of a postgraduate education such as law school." Id. at 544.
As with other forms of child support, a parent's obligation to pay educational expenses ordinarily terminates upon emancipation. See Gac v. Gac, 186 N.J. 535, 542 (2006); Newburgh, supra, 88 N.J. at 543-45; Johnson v. Bradbury, 233 N.J. Super. 129, 136 (App. Div. 1989). Notwithstanding that, "a parent can bind himself or herself by consensual agreement, voluntarily and knowingly negotiated, to support a child" beyond the presumptive age of emancipation. Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006). Such agreements are enforceable if they are "fair and equitable." Ibid. When parents have created an enforceable agreement as to child support, "the parental obligation is not measured by legal duties otherwise imposed, but rather founded upon contractual and equitable principles." Dolce, supra, 383 N.J. Super. at 18.
Generally, the interpretation of contract terms "are decided by the court as a matter of law unless the meaning is both unclear and dependent on conflicting testimony." Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 92 (App. Div. 2001). In other words, a court must first decide if an ambiguity exists. "An ambiguity in a contract exists if the terms of the contract are susceptible to at least two reasonable alternative interpretations. . . ." Nester v. O'Donnell, 301 N.J. Super. 198, 210 (App. Div. 1997) (quoting Kaufman v. Provident Life and Cas. Ins. Co., 828 F. Supp. 275, 282 (D.N.J. 1992), aff'd, 993 F.2d 877 (3d Cir. 1993)). Therefore, in "interpreting a contract, a court must try to ascertain the intention of the parties as revealed by the language used, the situation of the parties, the attendant circumstances, and the objects the parties were striving to attain." Celanese Ltd. v. Essex County Imp. Authority, 404 N.J. Super. 514, 528 (App. Div. 2009).
Where there is ambiguity as to the meaning of a contractual term, however, the Supreme Court has stated that:
we allow a thorough examination of extrinsic evidence in the interpretation of contracts. Such evidence may "include consideration of the particular contractual provision, an overview of all the terms, the circumstances leading up to the formation of the contract, custom, usage, and the interpretation placed on the disputed provision by the parties' conduct." Kearny PBA Local # 21 v. Town of Kearny, 81 N.J. 208, 221 (1979). "Semantics
cannot be allowed to twist and distort [the words'] obvious meaning in the minds of the parties." [Atl. Ne. Airlines v. Schwimmer, 12 N.J. 293, 307 (1953)]. Consequently, the words of the contract alone will not always control.
[Conway v. 287 Corporate Ctr. Assocs., 187 N.J. 259, 269 (2006).]
These general contract principles apply to matrimonial settlement agreements, subject to equitable considerations. Regan v. Regan, 246 N.J. Super. 473, 478-79 (Ch. Div. 1990) (construing the meaning of a divorce consent judgment "requires the court to evaluate the common intention of the parties"); see also Lepis v. Lepis, 83 N.J. 139, 145-48 (1980) (spousal agreements are enforceable to the extent their terms are "fair and equitable").
Here, the parties' Agreement and 2003 Consent Order both address their obligation to support their children's college education. The Agreement contains two key provisions. First, the Agreement defers calculation of each parent's support obligation for post-secondary education "until the children reach an appropriate age for determination." Second, the Agreement provides that, as long as a child is pursuing his college degree "with reasonable diligence and on a normally continuous basis," emancipation will not occur until that child's twenty-second birthday.
The later 2003 Consent Order further addresses the parents' educational support obligations. The order focuses on the allocation (i.e., one-third each) of the parents' educational support obligation. However, it makes no mention of the prior Agreement or its temporal limitations.
When read together, the agreements on their face are susceptible to two reasonable alternative interpretations. The first, as plaintiff contends, is that the parties intended to limit their obligation for educational costs to the date of each child's emancipation, which was not to exceed the age of twenty-two, rather than to continue such responsibility ad infinitum. The second interpretation, urged by defendant, is that while child support was to terminate upon emancipation, the parties nonetheless intended the allocation of college expenses to continue as long as the child remained a college student.
After considering this matter without an evidentiary hearing, the motion judge construed the Agreement and the Consent Order to require the plaintiff to continue to pay college expenses, even after the younger son reached the age of twenty-two and was declared emancipated. The judge noted that "[n]owhere in the IA did the parties place a limitation or conditions upon their responsibility to either pay school or pay the other party, including emancipation."
This reference to the Agreement, rather than the Consent Order, appears inadvertent.
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We conclude that the motion judge erred in deciding the issue based solely on the language of the two agreements. Here the wording of the two documents is sufficiently ambiguous to require an evidentiary hearing, and we remand for that purpose. On remand the judge may properly evaluate and consider any parol evidence that bears on the parties' intended meaning and understanding. Also, the judge may explore the parties' course of conduct regarding payment of the post-age-twenty-two college expenses of the older son. See Savarese v. Corcoran, 311 N.J. Super. 240, 248 (Ch. Div. 1997), aff'd, 311 N.J. Super. 182 (App. Div. 1998) ("[T]he parties['] intent in entering into an agreement can be determined from their course of conduct in following its terms over an extended period.").
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION