By Richard M. Sevrin, Esq.

Determining whether a parent is responsible for paying for a child’s college and graduate school education and how much any payment should be, raises many questions for lawyers and judges to consider.

New Jersey courts have long struggled with these issues so it is good to review the fundamentals periodically.

The examination of the parent’s responsibility to pay and fund college costs for children must start with a review of the 1982 New Jersey Supreme Court decision in  Newburgh v. Arrigo which sets forth the standard in the law for the parties in divorce to determine their responsibility to pay and fund college education. 

The Newburgh case involved  the distribution of the estate of Melvin Newburgh who was killed in an auto accident leaving a widow and son from a prior marriage. The issue was what responsibility existed for the estate and the parent for financing college and law school education for his son. A trial court refused to find Melvin’s wife’s Mexican divorce invalid and found that the son had no right to support after he turned 18. The distribution of the estate was 80% to the wife, 20% to the son.The Appellate Division disagreed and ordered a trial court hearing  as to the obligations of the estate for the support of the son after reaching 18.

The New Jersey Supreme Court found factual issues existed whether or not Melvin’s son had a right to financial support and a tuition contribution for college and law school after reaching 18. The justices ruled that the parties and estate were obligated to pay support and contribute to the son’s college and graduate school  education. The decision laid out a series of 12 factors to be considered by the trial court. While not all of the factors may be relevant, all of the factors must be considered in order to reach a decision.

Of particular note was the concept of the relationship between the parent and the child as it relates to financial contribution. This issue does not appear where a parent and child have a relationship and good normal communication and relationship. It becomes relevant where the parent does not have contact with the child and where the relationship is fractured. The justices in Newburgh found that the estate was liable to pay for support and education for both college and law school. 

The factors that must be considered are:

1.  When the parent, if still living with the child, would have contributed towards the cost of the requested higher education;
2.  The effect of the background, values and goals of the parent on the reasonableness of the expectation of 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, the 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 into the overall long-range goals of the child.
     

The relationship factor of parent and child is a complex issue which has become a primary focus in the analysis of how the parent would be required to contribute and how the parent-child relationship is viewed by trial  judges. A defense that is often raised is  that the parent should not be obligated to contribute because of the absence of the relationship with the child.

Judge Lawrence R. Jones, sought to resolve this issue in Black v. Black in 2013.

His analysis offers great assistance to counsel in dealing with matters where the relationship of the child and parent is fractured or disenfranchised and the unwillingness of a parent to contribute to that child’s cost leads to significant litigation as well as the obvious bad feelings.

The issue in Black was whether a parent was obligated to contribute to the child and his education absent any relationship. The defendant father objected due to the absence of the relationship respective of the language in the Matrimonial Settlement Agreement.

The decision in Black considered the finding in Gac v. Gac, that the relationship between the non-custodial parent and child does not negate the ability for a custodial parent to seek college education contribution for the child. 

Judge Jones in Black held that Gac stands for the proposition that the parent-child relationship is not the sole and exclusive factor in the analysis, but rather one of multiple Newburgh factors for review

He said that parents should not acrtively be an impediment to the relationship and, when this occurs, they cannot be immunized from college contribution by arguing that the relationship does not exist. Where a parent resists the role as a parent being involved in a child’s life, the court should still be able to compel the parent to contribute to college education costs.

In Black it was the child who was adverse to the relationship with the defendant father who was seeking to resolve the issues and heal the relationship. The son had resisted the father’s attempts to have a relationship with him. The judge observed that all cases are fact sensitive, and the son may have legitimate reasons. 

Judge Jones held that, “if an adult ‘child’ refuses to have a relationship with a parent without a clear showing of exceptional circumstances, and if that child further refuses to participate in trying the heal the relationship, such as by joining the parent in professional counseling, then the child’s message rings loud and clear from his or her own subjective perspective, the parent-child relationship no longer has any value.”

He ultimately decided to enforce the obligation to financially contribute to the son’s college tuition cost. The obligation would be expressly contingent upon the son’s reciprocal obligation to actively attend at least five joint counseling sessions with the father. 

Each college case is factually different and sensitive. Each family is dynamically different. Each relationship between parent and child may yield a different result and may require the focus of judges on the relationship between parent and child and how and in what manner to resolve the issues of funding education.

In college contribution cases the facts of the relationship between parent and child, the amounts required for funding of education and the ability of the parties to fund education at the choice schools of the child are certainly relevant and open to ultimate determination of the court, and must be carefully considered by attorneys in advocating their positions.

As Black pointed out parents are not expected to bankrupt themselves, sell their homes, liquidate their assets and be left in their retirement without funds in order to pay for the college education of their children.  The existence of a less expensive, more affordable college alternative is a factor which must be analyzed in the college contribution determination by the Court.  Attorneys, along with their clients, should be capable of noting the appropriate cost of college education taking into account the choices of their children and the children’s career and curriculum goals.

Richard M. Sevrin, Esq. is a partner in the Family Law Department at Lomurro, Munson, Comer, Brown & Schottland in Freehold, NJ. He has been a litigator in divorce, custody, domestic violence and related matters and has more recently focused his practice in Alternative Dispute Resolution which includes Mediation, Arbitration and Collaborative Law. He is an active member of the NJAJ Matrimonial Committee.